Hostile Work Environment

New Jersey Seeks to End Confidentiality of Sexual Harassment Lawsuits

August 13, 2018 | Smith Eibeler LLC

New Jersey lawmakers have introduced a bill that will prohibit an employer from requiring that victims of discrimination, retaliation and harassment to keep their claims confidential as part of a settlement. Employers routinely require that non-disclosure provisions are included as a material term of any settlement agreement in cases of sexual harassment and other employment discrimination. Bill No. 121, if passed, will render any confidentiality provision contained in a settlement agreement as unenforceable.

Earlier this year, the federal government passed the Tax Cuts and Jobs Acts (“TCJA”). In an apparent response to the #MeToo movement, the TCJA included a provision that prohibits employers from taking a deduction for attorney fees’ and costs that are incurred in any sexual harassment or sexual abuse case if the settlement agreement includes a non-disclosure provision. While this provision was clearly aimed at curbing the use of the non-disclosure provisions in sexual harassment lawsuits, it did not prohibit the use of non-disclosure provisions all together. Under TCJA, an employer can still require a victim of sexual harassment or abuse to keep any settlement of his or her claim confidential if they are willing to forgo the tax deduction.

Bill No. 121 takes it much further by making any confidentiality provision in any settlement agreement that attempts to conceal discrimination, retaliation, or sexual harassment, null and void. Under the bill, an employer must include a prominent notice that the clause is unenforceable if they choose to add it to any settlement agreement. The bill also prohibits an employer from taking any retaliatory action against an employee who refuses to sign an employment agreement that contains any illegal non-disclosure clause.

NJ Court Upholds $525,000 Sexual Harassment Jury Verdict

August 6, 2018 | Smith Eibeler LLC

A New Jersey Appellate Division has affirmed a jury verdict of $525K in favor of a former customer service representative against her former company, RockTenn Co., and supervisor for claims of hostile work environment and unlawful retaliation. This sexual harassment case is another reminder to all New Jersey employers of the importance of having effective anti-discrimination policies in place that stop and remediate workplace sexual harassment.

In the case, Velez v. RockTenn Company and Raymond Perry, the employee, Ms. Velez began her employment with RockTenn as a customer service representative in November, 2010 earning $45,000 per year. Shortly after beginning her employment, Ms. Velez’s supervisor, Mr. Perry, engaged in sexually harassing behavior toward her. The unwelcomed sexual harassment included Mr. Perry showing Ms. Velez a picture of his girlfriend and telling Ms. Velez that they had recently broke up. Mr. Perry commented that his girlfriend had “nice thighs” and he loved Latino women. Ms. Velez, who is also Latino, testified that Mr. Perry would inappropriate look at her breasts, legs and backside while he spoke to her at work and one time asked her out on a date. Ms. Velez also testified that he asked her out and that his conduct caused her to avoid going into his office. At the company holiday party, Mr. Perry again showed a picture of his girlfriend to Ms. Velez and announced that she was trying to convince him to have a threesome. A month later in January, 2011, Mr. Perry placed his hand over Ms. Velez’s hand during a work-related conversation and stated, “Oh, I should not be doing this, should I?”

Mr. Perry also exhibited controlling behavior over Ms. Velez during her employment. Mr. Perry attempted to limit Ms. Velez’s interactions with other employees and went as far as to instruct her not to have lunch with another male employee, whom Mr. Perry did not believe was a good person. Mr. Perry also prevented Ms. Velez from attending a mandatory training, which Ms. Velez claims was in retaliation for her rebuffing of Mr. Perry’s harassing conduct.

Soccer Star Leaves Germany’s National Team Because of Persistent Racial Harassment

July 25, 2018 | Smith Eibeler LLC

Over the weekend, German Soccer Star, Mesut Ozil, retired from the German National Team following what he claimed to be rampant racist remarks and mistreatment based on his Turkish heritage, according to the BBC. The German Football Association, “DFB”, denies accusations of maintaining a hostile and discriminatory work environment for athletes of foreign descent. Ozil’s allegations align with experiences of other World Cup athletes who claim that they’ve been victims of racially hostile treatment based on their national origin.

The FIFA World Cup of soccer took over the international sports stage this summer and served to shed light on issues of discrimination worldwide. Though athletes were required to be citizens of the countries that they played for in the tournament, many players identified as immigrants to these nations, or shared heritage with other countries as well. A common experience of these dual-citizenship or immigrant athletes was to feel as though their fans accepted them as fellow citizens only when their team won; after a loss, the “foreign” athletes were treated as undesirable outsiders. This sentiment would manifest in hate mail, racist or discriminatory statements, and the reception of undue blame for their team’s poor performance.

Along these lines, Mesut Ozil claims he was discriminated against, singled out and scapegoated for Germany’s failure to advance past the group stages in the World Cup this year. Ozil, who is of Turkish descent, claims that he received racially harassing hate mail and was unfairly blamed for Germany’s poor World Cup performance. Earlier this year, Ozil posted a photograph featuring himself alongside the President of Turkey after a friendly, soccer related meeting. Ozil was immediately criticized by DFB officials and fans who questioned his loyalty to democratic values. Ozil was also abandoned by partners and sponsors and denounced by DFB officials such as Reinhard Grindel for the photograph and meeting. Fans referred to him as a “Turkish pig” and German media outlets openly blamed his Turkish heritage and meeting with Erdogan for Germany’s losses in the World Cup.

EEOC Task Force Reconvenes to Discuss How to Transform #MeToo into Harassment-Free Workplaces

July 13, 2018 | Smith Eibeler LLC

More than a year before #MeToo, a Select Task Force was created by President Obama to examine the problem of sexual harassment at the workplace. The Select Task Force consisted of a select group of outside experts who analyzed the causes and effects of workplace harassment and made recommendations what should be done to prevent it. The Select Task Force’s Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace was published in 2016 before the #MeToo movement.

The mission of the Select Task Force on the Study of Harassment in the Workplace was to determine the extent to which harassment impacts employees of various industries nationwide, as well as how best to mediate this behavior. The Task Force operated in conjunction with the United States Equal Employment Opportunity Commission (EEOC), and its eighteen (18) members include academics, lawyers, EEOC representatives, and other experts from all across the country. The Select Task Force’s June 2016 Report outlined that analyzed the different factors that increase the risk of workplace harassment, how workplace harassment impacts employees and productivity, and how workplaces can both address and prevent the occurrence of harassment in their office. The eruption of movements have revealed the continuing epidemic of sexual harassment in the workplace which has caused an renewed interest in the report.

The report revealed that Equal Employment Opportunity Commission (EEOC) received approximately 30,000 charges of workplace harassment in 2015 alone. This statistic is even more shocking in light of the Select Task Force’s finding that only 25% of the victims report the harassment to their employers. In fact, reporting harassment to the employer is the least common response to harassment. Victims of sexual harassment fear disbelief, inaction, or blatant retaliation by their superiors or the harasser.

Third Circuit Decision Cites to #MeToo Movement in Holding that Failure to Report Supervisor’s Sexual Harassment is Not Per Se Unreasonable

July 7, 2018 | Smith Eibeler LLC

The Third Circuit has reversed a trial court’s decision that dismissed a sexual harassment lawsuit because the plaintiff employee never complained directly to her employer. The decision is causing employment attorneys across the country to question the continued viability of the Faragher-Ellerth defense, which permits employers to avoid liability for sexual harassment where an employee fails to make a formal complaint about sexual harassment directly to the employer.

In the case of Sheri Minarsky v. Susquehanna County and Thomas Yadlosky, Jr., the employee began her employment as a part-time secretary with the Susquehanna County Department of Veterans Affairs from September, 2009. The employee claimed that she had been sexually harassed by her supervisor throughout her employment starting from the very beginning. The sexual harassment included her supervisor attempting to kiss her on the lips, massaging her shoulders while she was at her computer and approaching her from behind and pulling her against him. The employee also claimed that the supervisor would often question her whereabouts during her lunch hour and would also call her at home under the pretense of a work-related inquiry only to then ask personal questions unrelated to work. The supervisor also sent sexually explicit messages through email to the employee.

While the employee never complained to her employer about her claims of sexual harassment in fear of retaliation, the employer was aware of the supervisor’s inappropriate behavior toward other women, which resulted in two verbal reprimands. Other employees also raised concerns that the supervisor would attempt to kiss employees under the mistletoe during Christmas time.

Recent Court Cases Highlight the Epidemic of Workplace Harassment

June 20, 2018 | Smith Eibeler LLC

Two recent New Jersey court cases further demonstrate that unlawful workplace harassment can occur in any industry, at any level, targeting employees of all demographics. Despite this fact, some workplaces are more susceptible to experiencing harassment than others. One such industry is the restaurant and hospitality industry. According to a recent study conducted by the Equal Employment Opportunity Commission, more restaurant and hospitality workers submitted complaints of workplace harassment than any other industry specified in the study. To some, this may seem predictable because of the frequency of late shifts, the presence of alcohol, and a reliance on tips in this industry.

One recent lawsuit that has received attention from local media originated from an employee of the well known Snuffy’s Steakhouse in Scotch Plains, New Jersey. In a complaint recently filed, Alston Shakera v. Snuffy Pantagis ENT. Inc., Alston alleged that she came out of the bathroom to find a busboy exposing himself, and then physically grabbing her when she refused his advances. Prior to this, Alston had been subject to a consistent pattern of sexually harassing comments and unwanted contact by both coworkers and customers. While this may seem like an extreme example of workplace sexual harassment, experts say that employees of restaurants are subject to unwanted touching and lewd remarks or text messages at a particularly high rate.

The restaurant industry is clearly not the only workplace plagued by unlawful harassing behavior. In another recent sexual harassment lawsuit filed against the Mountainside Police Department, several employees have alleged they were subjected to severe harassment and torment stemming including regular homophobic comments, sexual advances and even aggravated assault.

Legal Issues Surrounding the Sayreville Football Scandal

October 10, 2014 | Smith Eibeler LLC

The Sayreville Board of Education cancelled the varsity football team’s Thursday night game last week for what was described by Superintendent Richard Labbe as inappropriate conduct of a significant and serious nature within the football program. On Tuesday, the Board of Education cancelled the entire season in midst of the Middlesex County Prosecutor’s Office continued investigation into potential criminal conduct that occurred within the Sayreville football program.

ABC news reported that the allegations included younger kids of the Sayreville football team being routinely taunted, bullied and intimidated by the older players, often with “sexual overtones.” On Wednesday, nj.com published an exclusive article of specific allegations of sexual assault from an anonymous parent of a Sayreville football player. The article describes an almost daily locker room ritual of senior football players sexually assaulting freshman football players during this season as follows:

It came without warning.

Case Study: Was Jonathan Martin the Victim of an Unlawful Hostile Work Environment under New Jersey Law?

November 8, 2013 | Smith Eibeler LLC

ESPN, Sports Illustrated, Good Morning America and probably even your own Facebook page, have been flooded with varying opinions on the Miami bullying/harassment scandal. This blog entry is written by our New Jersey Employment Lawyers to analyze the facts, as reported, to determine whether a hostile work environment existed that would be in violation of the New Jersey Law Against Discrimination.

For those who have been living under a rock for the week, Miami Dolphins offensive lineman Jonathan Martin left his employment with the Miami Dolphins as a result of, at least in part, constant harassment and bullying directed at him from his teammates. It has been reported that Mr. Martin checked himself into a hospital as a result of suffering from emotional distress caused by the harassment. One teammate in particular, Richie Incognito, has been suspended indefinitely for his role in the harassment and bullying. NFL Commissioner Roger Goodell has appointed the prominent attorney, Ted Wells, to conduct an independent investigation into allegations of harassment and bullying within the Miami Dolphins.

Based upon the allegations that have reported, Mr. Wells’ investigation should reveal that Jonathan Martin was subjected to a hostile work environment that would be in violation of New Jersey law. The New Jersey Law Against Discrimination makes it unlawful to discriminate against an employee on the basis of protected characteristics, which include race, color, disability and sexual orientation. In other words, the discrimination must be based upon one of these protected characteristics in order for the harassment to be against the law. In the landmark case of Lehman v. Toy ‘R’ Us, Inc. 132 N.J. 587 (1993), the New Jersey Supreme Court defined a hostile work environment based upon sexual harassment as discriminatory conduct that a reasonable person of the same sex in the plaintiff’s position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment. The Lehman decision held that New Jersey employers must maintain an effective policy against unlawful harassment/discrimination. An effective policy requires, inter alia, that employers investigate complaints of harassment promptly, thoroughly and completely. All complaints of sexual harassment and other forms of discrimination must be fully investigated.

Did ex-Rutgers Basketball Coach Mike Rice Create an Illegal Hostile Work Environment in Violation of the New Jersey Law Against Discrimination?

April 4, 2013 | Smith Eibeler LLC

Rutgers University terminated its basketball coach in the wake of ESPN’s broadcast of a videotape showing him physically and verbally abusing players during practice. Public opinion seems nearly unanimous that Mike Rice’s conduct warranted his termination, but the question remains did he create an unlawful hostile work environment under New Jersey Law Against Discrimination?

New Jersey has some of the strictest anti-discrimination and anti-harassment laws in the United States. Most notably, New Jersey’s Law Against Discrimination outlaws unlawful employment discrimination against any person on the basis of protected characteristics, which includes sex, sexual orientation, national origin and others. In 2007, the New Jersey Supreme Court in a case called L.W. v. Toms River Regional Board of Education, 189 N.J. 381 (2007) extended the workplace protections provided under Law Against Discrimination to situations where schools fail to stop severe and pervasive bullying based upon protected characteristics such as sex, sexual orientation and national origin. This means that if a school permits severe and pervasive harassment based upon a protected characteristic, the school can be found liable. Moreover, if the school knows or should know of the existence of unlawful discrimination or harassment, the law requires that the school investigate, remediate and prevent it from happening again.

The video shown by ESPN of several Rutgers basketball practices reveals numerous incidents of Mike Rice pushing, kicking and throwing basketball balls at players. It also depicts Mike Rice yelling gay slurs at players calling them “faggots” and other inappropriate comments. ESPN has also reported that Mike Rice regularly called one of his former players who transferred to Rhode Island, Gilvydas Biruta, names relating to his national origin of Lithuania and gay slurs. Former Rutgers assistant coach, Eric Murdock, who is anticipated to file a lawsuit against Rutgers for unlawful retaliation and wrongful termination, has alleged that Mike Rice would constantly scream at Mr. Biruta by using his national origin and gay slurs. For example, Mr. Murdock says that Mike Rice called Mr. Biruta a “soft-ass Lithuanian bitch,’ ‘soft-ass Lithuanian pussy’ and ‘Lithuanian faggot.'” Mr. Biruta told ESPN that he took offense to Rice’s name calling and insults stating, “If you’re going to criticize me as a basketball player, I’m OK with that,” he said, “but he would criticize me as a person.” Mr. Biruta also told ESPN that the main reason he transferred was because of Mike Rice’s treatment of him.

Non-Jewish Employee Subjected to Anti-Semitic Harassment May Proceed with Religious Discrimination Claim

April 23, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed a trial court’s granting of summary judgment dismissing an employee’s claim under the New Jersey Law Against Discrimination when Defendants wrongly perceived the employee to be Jewish and directed daily Anti-Semitic comments at him. The court disagreed with the trial court’s determination that the employers’ perception that the employee was Jewish, when he in fact was not, did not provide grounds for a recognizable claim under of religious discrimination under the New Jersey Law Against Discrimination.

In Cowher v. Carson & Roberts Inc., the claimant, Mr. Myron Cowher, was employed with Carson & Roberts Inc. as a truck driver from April 2006 through May 2008. From January 2007 through May 2008, Mr. Cowher was subjected to Anti-Semitic statements that were made directly to him by his two supervisors on a daily basis and often in the presence of other coworkers. Although the employer initially denied making such statements, video recordings revealed Mr. Cowher’s supervisors made various Anti-Semitic statements to Mr. Cowher. For example, Mr. Cowher’s supervisors called him a “Jew bag” over 20 times, called him a “Jew bastard” and told him “Only a Jew would argue over his hours.”

Mr. Cowher’s supervisors stated that the comments were made not because they perceived Mr. Cowher to be Jewish but instead because he and his wife took a cut of a Superbowl pool they ran and thus “fit the stereotype of Jews being avaricious.” The employer claimed that these comments were nothing but “light hearted banter between co-workers.” Mr. Cowher did not agree that these comments were “light hearted banter” and complained to the supervisors and to the Facility Manager. The Facility Manager told Mr. Cowher to laugh it off and then after making another complaint, Mr. Cowher was told to ignore it and it would go away.