Law Against Discrimination

Jury Awards $2.4 million in Sexual Harassment Trial Against PNC Bank

February 12, 2020 | Smith Eibeler LLC

A jury has found in favor of a former PNC Bank employee and awarded her damages $2.4 million is damages after finding she was victim of sexual harassment. Damara Scott, a former wealth manager who worked at the PNC Bank branch in Glen Ridge, New Jersey, claimed in her lawsuit that a regular customer grabbed her and grinded into her buttocks.

The incident concerning the alleged sexual assault took place on October 20, 2013. Ms. Scott alleges that she was stalked by a well-known and regular customer, named Patrick Pignatello, who followed her to her car when she was attempting to leave work for the day. Ms. Scott alleged that Mr. Pignatello proceeded to utter vulgar, sexist and racist insults and touched and grouped her from her behind. Ms. Scott testified that Mr. Pignatello stated to her, “No, I’m not following you. I offer full services and I’m willing to please.” She alleges he then pumped and grinded into her buttocks. Ms. Scott claimed that she was able to get away from Mr. Pignatello and went to the back of her car to drop her on the trunk so she could try to fight him off.

At this time, the branch manager had informed one of the tellers that Mr. Pignatello had followed Ms. Scott to her car and ran out through emergency door towards Ms. Scott. The branch manager screamed to Ms. Scott, “Are you ok? What did Pat do? Do you want me to call the police?” Ms. Scott claims that she was so shocked and embarrassed she could not respond appropriately and told the branch manager that she just wanted to leave and then left.

Hollywood Establishes a Commission to Address Problems of Systemic Sexual Harassment

January 29, 2020 | Smith Eibeler LLC

In recent years, allegations of sexual harassment and sexual misconduct have abounded throughout the United States, and, particularly, in the Hollywood spotlight. In response to continuing and increasing numbers of allegations of sexual harassment and misconduct in the entertainment industry, the Hollywood Commission on Eliminating Sexual Harassment and Advancing Equality formed in 2017. The organization’s mission is “leading the entertainment industry to a strong and equitable future by defining and implementing best practices that eliminate sexual harassment and bias for all workers, especially marginalized communities, and by actively promoting a culture of accountability, respect and equality.”

The Commission is founded and chaired by Anita Hill, a law professor who became an icon for the #MeToo and #TimesUp movements before they existed in 1991, when she accused nominated Supreme Court Justice Clarence Thomas of sexual harassment. While Hill did not publicly oppose his nomination, a confidential FBI interview with Hill was leaked to the press, prompting Senate hearings on Justice Thomas’ nomination to be reopened. Hill testified that Thomas, her supervisor at the Department of Education and the Equal Employment Opportunity Commission (EEOC), had sexually harassed her. In light of Thomas’ denial of her allegations, Hill agreed to take a polygraph test – the results were consistent with her testimony. In Thomas’ 2007 autobiography, My Grandfather’s Son, Thomas refers to Hill as his “most traitorous adversary”. Hill’s work advocating for women in the workplace has continued, as she now leads the charge against sexual harassment in the entertainment industry.

Hill stated, “The Me-Too movement sent shockwaves throughout the Hollywood community. We all know that there is work to be done to create safe and respectful workplaces in the industry. Our next step is to understand the state of the industry today, so that we can implement effective solutions.” Recently, the Commission joined with the Ethics & Compliance Initiative, a non-profit research organization focused on empowering organizations to build and sustain high-quality ethics and compliance programs and cultures of integrity, to develop a survey.

New Jersey Passes Employee Misclassification Laws for Workers

January 22, 2020 | Smith Eibeler LLC

Governor Phil Murphy has signed into law several bills that will significantly expand protections for New Jersey workers. The new legislation includes a package of bills that aim to protect the rights of workers who have been misclassified as independent contractors. The new law provides for penalties against employers who misclassify their workers as independent contractors instead of employees.

The punitive aspect of the new law aims to encourage employers to appropriately designate employees as such, and therefore affording them the legal protections provided to employees under various state and federal employment laws. However, this controversial bill has sparked much debate regarding the future of workers in the “gig” economy. Opponents of the law contend that the new law will create significant financial burdens on businesses who will then in turn refuse to employ these workers.

New Jersey employment law distinguishes between two types of workers: employees and independent contractors. While regular employees enjoy and have access to wage theft protections, overtime pay, workers’ compensation, unemployment benefits, sick and family leave, health and safety, and anti-discrimination protections, independent contractors receive no such benefits. Historically, employers were required by law to pay tax contributions on employee’s wages only, and not those of independent contractors. This resulted in a scenario where it is enticing for employers to classify, and perhaps even misclassify, workers as independent contractors under any circumstance. The new legislation aims to combat such conduct and improve protections for misclassified workers.

New Jersey to Propose Legislation Addressing Systemic Sexual Harassment within Political Campaigns

January 15, 2020 | Smith Eibeler LLC

A bipartisan team of New Jersey state legislators has announced its intention to introduce unprecedented legislation to address harassment and discrimination in New Jersey political campaigns and political parties. New Jersey is leading the push to create long-needed political campaign oversight and such legislation would be the first in the nation. The legislation comes at a time where more and more reports of rampant sexual harassment and sexual assault are brought to light in the media and in courts throughout the country.

The bill will create a new, independent process through which political and campaign staff and volunteers can immediately report allegations of harassment or discrimination without fear of retaliation. The proposed legislation will include clearly defined reporting processes with various reporting structures and mechanisms, codes of conduct, mandatory training, new guidelines and requirements for political campaigns and organizations, penalties for non-compliant entities and individuals, as well as oversight by at least one professional trained in supporting survivors of sexual assault.

While the new bill would create certain legal obligations specifically to campaigns concerning harassment, the dictates of the New Jersey Law Against Discrimination will continue to apply to campaigns. The New Jersey Law Against Discrimination prohibits sexual harassment and discrimination to employees who work on the campaign and invitees of the campaign under the public accommodation provisions of the. Invitees include persons such as volunteers, independent contractors and other persons who work on the campaign but may not be considered “employees” under the New Jersey Law Against Discrimination employment sections.

NJ Court Finds Ocean Township Police Department’s Pregnancy Leave Policy Unlawful

January 7, 2020 | Smith Eibeler LLC

The New Jersey Appellate Division has ruled that an employer’s pregnancy leave policy that requires pregnant employees to exhaust their accrued paid sick and vacation time to be in violation the New Jersey Law Against Discrimination. In finding for the employee in the reported decision of the the entitled Delanoy v. Township of Ocean, the analyzed the New Jersey Pregnant Workers Fairness Act, an amendment to the Law Against Discrimination dating back to January 17, 2014, which specifically made pregnancy a protected class under the state anti-discrimination law. The court’s decision is being viewed as a significant legal victory of New Jersey pregnant worker’s rights.

The appeal arose from a suit brought by an Ocean Township police officer, alleging pregnancy-based discrimination in connection with her request for an accommodation related to her pregnancy. Specifically, she claimed that the Township’s policy regarding pregnant workers is discriminatory on its face and that the requirement that she exchange her accrued PTO as a condition of her accommodation amounted to an unlawful penalty.When Plaintiff became pregnant, she submitted a doctor’s note to the Township advising them of her pregnancy and her need to be transferred to a light-duty position. Plaintiff sought the transfer from September 22, 2014 through the end of her pregnancy, in March 2015.

On or about September 22, 2014, Plaintiff was provided an administrative position in the Township’s Department of Records, and was further assigned to receiving walk-in complaints at the police station. In her role as the walk-in officer, Plaintiff did not feel comfortable as her pregnancy precluded the use of her firearm and the position had dangerous propensities. Nevertheless, she performed her duties as instructed. Despite her ability to work and prior to her expected due date, around February 25, 2015, the Township forced Plaintiff to take her pregnancy leave early and begin using her PTO. In total, Plaintiff was required to deplete 2 weeks of PTO.

United Airlines Settles Cyber Sexual Harassment Lawsuit with EEOC

December 27, 2019 | Smith Eibeler LLC

The United States Equal Employment Commission (“EEOC”) has announced that it has settled a discrimination lawsuit in the amount of $321,000 against the United Airlines involving issues of cyber sexual harassment. The Flight Attendant alleged in her pleadings that United Airlines was negligent in allowing ongoing sexual harassment and cyber bullying of a pilot after she broke up with him in 2006 and therefore was responsible for creating at hostile work environment.

In the filed Complaint, the Flight Attendant alleges that she was engaged in a consensual intimate relationship with a United Airlines pilot from 2002 through 2006. During the consensual relationship, the Flight Attendant permitted the pilot to take photos and videos of her in provocative poses. The Flight Attendant alleges that the pilot also took at least one photograph and/or video with her knowledge or permission. In or about 2006, one of the Flight Attendant’s co-workers informed her that he had seen nude photos of her on an internet website for “swingers.” The co-worker told the Flight Attendant that he was led to believe that he had been “chatting” with her on the internet and that he had believed that she had personally emailed him additional photos after they had been communicating directly. Because of the conversation with the co-worker, the Flight Attendant came to believe that the pilot was the person responsible for posting and circulating the nude images of her on the internet. The Flight Attendant ended the relationship with the pilot after confronting the pilot about him posting the photos and videos without her permission or authorization.

The lawsuit alleged that the pilot continued to regularly post the sexually explicit photos and videos over the next decade, from 2006-2016. The Flight Attendant came to learn that the images and videos were viewed by at least two of her United Airlines co-workers and tens of thousands of other United Airlines personnel and coworkers. Despite her repeated complaints and obtaining an injunction, the pilot continued posting the videos and pictures on the internet. The pilot repeatedly referred to the Flight Attendant by name and her occupation and home airport, which she alleged he did intentionally to affect the terms and conditions of her employment.

New Jersey Moves Forward with Hair Discrimination Law

December 18, 2019 | Smith Eibeler LLC

Earlier this week, New Jersey’s Assembly and Senate passed a ban on discrimination associated with hair. Discrimination based on hair has been popping up in courtrooms and legislatures across the country. Once Governor Murphy signs off, it will be unlawful to discriminate based upon hair.

In several states, bills have been proposed to increase protections from hair based discrimination. The New Jersey State Assembly Labor Committee approved a bill this past summer to ban discrimination based upon hairstyles and textures that are traditionally associated with race and is considered a form of race discrimination. The bill was prompted by a December 2018 incident involving a New Jersey high school wrestler forced by a referee to cut his hair, styled in locs, or forfeit the match. The bill was proposed by Assemblywoman Angela McKnight, Hudson County’s representative, following the outrage surrounding the wrestler’s forced hair cut—performed publicly by the referee, in front of spectators. The bill, originally introduced this summer that was recently passed, amends the New Jersey Law Against Discrimination to reflect that “race” is inclusive of traits “historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” “Protective hair styles includes, but is not limited to, such hairstyles as braids, locks, and twists.”

The New Jersey Law Against Discrimination prohibits employers and places of public accommodation from discriminating against employees and other persons. While race has long been recognized as a protected class of persons protected by the state discrimination law, the New Jersey law will specifically prohibit discrimination based upon hair, if the governor signs it into law.

Lift Our Voices: National Effort to Curb the Use of NDAs

December 12, 2019 | Smith Eibeler LLC

On December 11, 2019 at The Hollywood Reporter’s Annual Women in Entertainment breakfast gala, Gretchen Carlson announced the formation and launch of “Lift of our Voices,” an education and advocacy organization focused on putting an end to the practice of using Non-Disclosure Agreements (“NDAs”) to silence victims of sexual harassment and discrimination. In making the announcement, Carlson was joined on stage by Charlize Theron, an actress who is portraying Megyn Kelly in the upcoming film “Bombshell,” which details the Fox News sexual harassment scandal that saw then-CEO Roger Ailes forced to resign from the company. Carlson’s sexual harassment complaint against Ailes ultimately lead to his resignation, but her settlement with Fox News, and the NDA she was required to sign to enter into that settlement, have prevented her from speaking publicly about the case.

An NDA is a contract that identifies certain information or topics that the parties agree they will not discuss with anyone following execution of the contract or agreement. NDAs typically are entered into in connection with an additional contract or agreement, such as an employment contract or a settlement or severance agreement. Often in the context of employment contracts, a prospective employee will agree not to discuss or disclose certain information regarding their employment to anyone outside the company, in exchange for being hired. In the context of settlement or severance agreements, a departing employee agrees not to discuss or disclose certain information regarding their employment or their reason for leaving the employment, in exchange for a settlement or severance payment.

In either situation, the NDA agreement can be used by the employer to facially “resolve” issues of harassment and discrimination without truly addressing systemic issues within their organization. In such a case, new prospective employees are unaware that they are entering a workplace where they may be unsafe. The public at large is likewise kept unaware, and individuals will then unwittingly support companies that they otherwise may choose not to support. Consumers are unable to apply commercial pressure to businesses that harbor and protect harassers, allowing those companies to circumvent a powerful societal check on business practices. Carlson and her organization are aiming to solve this problem, to give society at large access to this information, and more importantly, as Carlson stated, to give victims “back the voices they deserve.”

Sexual Harassment on the Campaign Trail

December 11, 2019 | Smith Eibeler LLC

The #MeToo movement has shined much-needed light on the prevalence of sexual harassment within political campaign organizations. Operating a political campaign, a transient organization — comprised of the candidate, and his or her workers, applicants, consultants and invitees – presents unique challenges. These challenges, however, do not shield campaigns the legal obligation to keep women safe from sexual harassment and misconduct within the campaign environment. Women who are sexually harassed while working in campaigns are increasingly speaking, including filing lawsuits against the campaign entities when they fall victim to sexual harassment and assault.

Most recently, it was reported that a Chicago-based political staffer, Alaina Hampton, settled a sexual harassment lawsuit against a campaign, several political entities, and the campaign supervisor who sexually harassed her. Ms. Hampton, a former political staffer and campaign manager, filed the lawsuit in March 2018. She first began working on Chicago-based political campaigns in 2012 after graduating college with a degree in political science. In or about July 2016, Ms. Hampton began working on three separate democratic campaigns for the Democratic Party of Illinois for which she was paid a salary. Kevin Quinn, Ms. Hampton’s supervisor, was a well-known, high-ranking political operative for Speaker Madigan and the Madigan Defendants. Mr. Quinn directed Ms. Hampton’s work on any one of the three campaigns to which she was assigned.

Shortly after Ms. Hampton began working with Mr. Quinn, she alleges he began to subject her to severe and pervasive sexual harassment. According to Ms. Hampton’s complaint, Mr. Quinn regularly pursued Ms. Hampton for a romantic and sexual relationship. Mr. Quinn’s purported sexually harassing behavior included repeated late-night text messages asking Ms. Hampton out, telling her she was “smoking hot,” and insisting she go out with him. Ms. Hampton asserts that she repeatedly told Mr. Quinn that she did not want to become involved with him and wanted to keep their relationship professional. Ms. Hampton alleges that despite her repeated rejections, Mr. Quinn refused to take “no” for an answer.

New Jersey Transgender Equality Task Force Issues Recommendations to Address LGBTQ Discrimination

November 21, 2019 | Smith Eibeler LLC

The New Jersey Transgender Equality Task Force issued its report and recommendations on November 20, 2019 to address discrimination against transgender individuals of New Jersey. The New Jersey Transgender Equality Task Force, was established by Governor Murphy and its Senate and Assembly sponsors in July, 2018, convened in March, 2019 and has worked for the past six month studying a wide ranging issues of discrimination facing transgender persons, including health care, long term care, education, higher education, housing, employment and criminal justice. New Jersey’s creation of the Transgender Equality Task Force is the first in the nation.

The task force was chaired by Aaron Potenza who is the Policy and Program Manager for the New Jersey Coalition Against Sexual Assault. Mr. Potenza was joined by representatives from nine state agencies along with other experts, lawyers and health care professionals. The task force’s directive was to assess the legal and societal barriers to equality for transgender individuals in the State and to make recommendations to ensure equality and improve the lives of transgender individuals. The task force’s report, entitled “Addressing Discrimination Against Transgender New Jerseyans”, includes various recommendations to address LGBTQ discrimination, which include the following:

the Governor’s Office announcing a campaign to increase sexual orientation and gender identity data collection throughout New Jersey state agencies;