Law Against Discrimination

When is an Employer Responsible for Sexual Harassment?

January 2, 2019 | Smith Eibeler LLC

Most people know what sexual harassment is when they see it. Whether an employer is responsible for sexual harassment that occurs at the workplace, however, is a more complicated fact specific inquiry.

It is first important to understand the definition of unlawful sexual harassment. Sexual harassment is a form of unlawful discrimination under the New Jersey Law Against Discrimination. The first form of sexual harassment is quid pro quo harassment. A claim of quid pro sexual harassment occurs when an employer attempts to make an employee’s submission upon a sexual demand or sexual proposition a condition of employment. The second form of sexual harassment is a claim of hostile work environment sexual harassment. The elements of a hostile work environment sexual harassment is when the harassment (1) would not have occurred but for the employee’s sex, and the harassment was (2) severe and pervasive enough to make a (3) reasonable woman believe that (4) the conditions of the employment are altered and the working environment is hostile or abusive.

The first issue to determining whether an employer can be liable for sexual harassment that occurs at its workplace in a lawsuit is to identify the damages an employee is seeking in the case. An employer will be liable for equitable damages and relief if he or she seeks restoration of the terms, conditions and privileges of employment that he or she would have enjoyed but for the discrimination or sexual harassment. Equitable relief is not money damages. Instead, an employee who seeks equitable relief as a result of sexual harassment is looking for the court to require the employer to act or refrain from performing a particular act such as stopping the harassment, job reinstatement or other non-monetary relief.

Death of Taxes: Bill Allowing Plaintiffs in Fee-shifting Discrimination and Qui Tam Cases to Claim Income Tax Exclusion Gets Final Legislative Approval

December 19, 2018 | Smith Eibeler LLC

On Monday, the New Jersey State Assembly approved a bill that would provide a substantial tax benefit to victims of unlawful workplace discrimination, retaliation, or other violations of laws that regulate any aspect of the employment relationship. This bill was first introduced in the New Jersey State Senate in January 2018, and has enjoyed widespread, bi-partisan support as it has worked its way through the legislative process. Monday’s approval by the Assembly, by a unanimous vote of 79 to 0, was the final legislative hurdle. If Governor Phil Murphy signs the bill into law, it will be a great victory for victims of workplace discrimination and retaliation across New Jersey.

In 2004, the United States Congress passed the Civil Rights Tax Relief Act. The Civil Rights Tax Relief Act was intended to, among other things, eliminate a flaw in the tax treatment of awards won by plaintiffs who successfully prosecuted claims of discrimination or retaliation. Prior to 2004, a plaintiff who received an award in a discrimination or retaliation case were required to include in their gross income the entire amount of that award.

This was the case, despite the fact that a portion of that award constituted attorney’s fees and costs that were awarded along with the amount awarded for the plaintiff’s damages. Not only did this tax treatment negatively impact those plaintiffs, it also subjected that portion of the award to double taxation, as the attorneys who ultimately collected those fees and costs were also required to include that amount in their gross income. Congress cured this flaw by exempting that portion of such a plaintiff’s award from their gross income. In approving the legislation on Monday, New Jersey is finally following suit.

What is Unlawful Workplace Sexual Harassment under the New Jersey Law Against Discrimination

December 12, 2018 | Smith Eibeler LLC

The #MeToo movement has brought long overdue attention to the systemic societal problems concerning workplace sexual harassment throughout the United States and the State of New Jersey. Most sexual harassment claims by a New Jersey employee are brought under the New Jersey Law Against Discrimination, a state statute. While a New Jersey employee or resident may also bring a claim of sexual harassment under the federal statute, Title VII, most New Jersey employment lawyers counsel clients to proceed with their sexual harassment claim under the New Jersey Law Against Discrimination (LAD). This blog outlines the various types of workplace sexual harassment claims brought under the New Jersey Law Against Discrimination.

In enacting New Jersey’s anti-discrimination law, the state legislature expressly declared “discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a democratic State.” N.J.S.A.10:5-3. New Jersey courts interpreting the LAD have long and consistently recognized that employers are best situated to avoid or eliminate impermissible, pernicious employment practices relating to sexual harassment, to implement corrective measures to stop future sexual harassment, and to adopt and enforce employment policies that will serve to achieve the salutary purposes of the legislative mandate to end workplace discrimination. New Jersey courts consistently remind us that the overarching goal of the New Jersey Law Against Discrimination is nothing less than the eradication of the cancer of discrimination.

There are different claims of sexual harassment that are actionable against an employer. These include claims of hostile work environment, quid pro quo sexual harassment, and sexual harassment retaliation.

EEOC Releases Preliminary Report Showing Increase in Sexual Harassment Claims in 2018

October 11, 2018 | Smith Eibeler LLC

On October 4, 2018 the Equal Employment Opportunity Commission (“EEOC”) released the preliminary report of the sexual harassment data they collected for fiscal year 2018 (ending September 30, 2018). This report shows that the #MeToo movement has had a widespread impact on reporting of sexual harassment and related workplace abuses.

The EEOC is the federal agency of the United States charged with administering and enforcing civil right laws against workplace discrimination including claims of sexual harassment, unlawful discrimination and retaliation. Individuals who have suffered wrongful termination or discrimination at the workplace can file a charge with the EEOC by themselves or through the assistance of a private employment lawyer. The EEOC was formed in 1965 and maintains its headquarters in Washington, DC with offices throughout the United States, including New Jersey.

Over the course of the past year, there has been a seismic shift in the way that sexual harassment has been viewed and addressed across all aspects of our society in large part due to the #MeToo movement. Nowhere has this change been seen more drastically than in the incidents of sexual harassment at the workplace. In the past year there has been a reckoning across the United States, with a clear message being sent to harassers that discriminatory and harassing behavior and conduct will no longer be tolerated at the workplace, our schools or in any other circumstances.

Investigation Reveals A Culture of Sexual Harassment Within Dallas Mavericks Organization

September 28, 2018 | Smith Eibeler LLC

An extensive independent investigation into the Dallas Mavericks has substantiated numerous claims of sexual harassment and other serious workplace misconduct within the organization over a span of over 20 years. In response to the findings, Mavericks owner Mark Cuban has apologized to all the women involved and promised that the organization will be better in addressing issues of sexual harassment in the future. Mr. Cuban will also pledge $10 million to women’s groups in response to the findings of report.

Incidents of sexual harassment first became public in a February 20, 2018 Sports Illustrated article titled “Exclusive: Inside the Corrosive Workplace Culture of the Dallas Mavericks. In the article, SI details various allegations of severe and pervasive sexual harassment within the Maverick organization. The allegations included more than a dozen current and ex-employees referring to the sexual harassment, domestic violence and other serious misconduct within the workplace as being as an “open secret.” Many of the incidents of the sexual harassment came from Team President and CEO, Terdema Ussery, who was accused of sexually harassing employees from the very beginning of his employment in 1998 when he became President and CEO. The allegations against Mr. Ussery included him repeatedly positioning employees for sex, unwelcomed touching of employees during meetings and other incidents of sexual harassment. Mr. Ussery left the Mavericks in 2015 to take a position with Under Armour as president for global sports. It has been reported thecomeback.com/nba/mavericks-former-president-terdema-ussery-accused-serial-sexual-harassment.html that Mr. Ussery was accused of sexual harassment at Under Armour and resigned after two months in the position.

The Dallas Mavericks responded to the SI story by hiring prominent employment lawyers from the law firms of Lowenstein Sandler and Krutoy Law, P.C. to conduct a thorough investigation into the allegations in the article and all other any issues of serious misconduct. According to the investigation report, the employments lawyers conducted interviews of 215 witnesses during the seven-month long investigation. The employment lawyers reviewed 1.6 million documents and emails with the assistance of an independent forensics firm. They also reviewed human resource files, employee handbooks, policies and training and other information on the hiring, firing, promotions salaries, salary increases and bonuses provide to employees.

New Jersey Court Strikes Punitive Damage Bar in Employment Arbitration Agreement

September 7, 2018 | Smith Eibeler LLC

The New Jersey Appellate Division has reversed a trial court’s determination that barred an employee from pursuing punitive damages in an arbitration proceeding. While reversing the trial court’s determination concerning the issue of punitive damages, the court affirmed the trial court’s dismissal of the lawsuit by holding that the plaintiff knowingly agreed to arbitrate her sexual harassment claims by waiving her right to a jury trial as set forth in the employment agreement. As a result, the employee will now pursue her sexual harassment claims in a private arbitration, but will be permitted to pursue her claims for punitive damages in the arbitration proceedings.

In the case of Milagros Roman v. Bergen Logistics, LLC,the employee, Ms. Roman, alleges that she experienced sexual harassment during her employment with Bergen Logistics. Roman began her employment as a human resource generalist in 2015. In April, 2017, Roman alleges that she was subjected to sexual harassment from her immediate supervisor and was terminated form her employment in retaliation for rebuffing the sexual advances. Roman subsequently filed a complaint in the Superior Court of New Jersey for claims sexual harassment, retaliation, hostile work environment and intentional infliction of emotional distress.

The employer responded by filing a motion to dismiss and to compel Roman to bring her claims in a private arbitration proceeding based upon an employment agreement that she signed in which she waived her right to a jury trial. The employment agreement also included a provision that barred Roman from pursuing punitive damages in any action against the employer. Specifically, the agreement read the employee and the employer agreed not to “file or maintain any lawsuit, action or legal proceeding of any nature with respect to any dispute, controversy or claim within the scope of [the] Agreement,” and that “BY SIGNING [THE] AGREEMENT [PLAINTIFF] AND THE COMPANY ARE WAIVING ANY RIGHT, STATUTORY OR OTHERWISE TO A TRIAL BY JURY.” The trial court granted the employer’s motion and dismissed Roman’s claim and also found that the arbitration agreement’s clause that waived Roman’s right to pursue punitive damages as enforceable.

Court of Appeals Allows Disabled Employee To Pursue ADA Wrongful Termination Claims

August 22, 2018 | Smith Eibeler LLC

The United States Court of Appeals Third Circuit has reversed a district court’s dismissal of a disability discrimination lawsuit brought by a registered nurse against her former employer. In the lawsuit captioned Aleka Ruggiero v. Mount Nittany Medical Center, the registered nurse claims that she was unlawfully terminated from her employment in violation of the Americans with Disabilities Act (“ADA”) for being terminated after refusing to get required vaccination because of her disability.

The plaintiff, Aleka Ruggiero, was employed as a registered nurse at Mount Nittany Medical Center before being terminated in July of 2015. According to the Complaint, Ms. Ruggiero suffers from severe anxiety and eosinophilic esophagitis, which limited her certain areas of life, including her ability to eat, sleep and engage in social communications. Despite her disabilities, Ms. Ruggiero was able to perform her job duties.

However, Ms. Ruggiero was required by the medical to receive a vaccination for tetanus, diphtheria and pertussis (the “TDAP”) vaccination as a result of her position as a nurse. After not obtaining the vaccination prior to the deadline mandated by the hospital, Ms. Ruggiero provided a medical note from her doctor that medically exempted her from having to receive the vaccination. Mount Nittany Medical Center rejected the doctor’s note and requested further detail concerning Ms. Ruggiero’s medical inability to get the TDAP vaccination. After the treating doctor provided further information from the treating doctor, the medical center again rejected it as insufficient. The medical center also rejected Ms. Ruggiero’s request to wear a surgical mask while at work as a different form of reasonable accommodation. After rejecting both reasonable accommodations requests, Ms. Ruggiero was eventually terminated after she missed the new imposed deadline to obtain the TDAP vaccination.

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.