Law Against Discrimination

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.

New Jersey Equal Pay Act Takes Effect Today

July 1, 2018 | Smith Eibeler LLC

The United States has historically been plagued by systematic employment discrimination based on protected characteristics that often take the form of unjustifiable wage disparity. The Diane B. Allen New Jersey Equal Pay Act attempts to curb this practice in New Jersey by placing strict regulations in situations where employers pay their employees disparate wages, and imposing large penalties on employers who violate this statute. Governor Phil Murphy signed the bill into law on April 24, 2018 in hopes of creating a work environment in the state that fosters pay equity. It takes effect, today, July 1, 2018.

The Equal Pay Act amends the New Jersey Law Against Discrimination to strengthen protections against discrimination by specifically prohibiting unfair pay practices based on gender, race, or other characteristics. It restricts employers from paying employees who are members of protected classes reduced wages in comparison to non-protected class employees by making it unlawful for women to be paid less than their male counterparts simply because of their gender. An employer may utilize differing compensation rates only pursuant to:

A seniority or merit system

USTA Changes Pregnancy Accommodation Policy

June 27, 2018 | Smith Eibeler LLC

The United States has been slowly progressing towards equity when it comes to employment policies that outlaw gender, disability, and other types of discrimination. Despite this advancement, there are a few areas that have shown reluctance to moving forward. One such industry is that of professional sports. As a result of the nature of sports related occupations, issues such as disability, gender, and pregnancy discrimination have proven difficult to overcome. Athletes who are considering starting a family must contemplate the reactions of their sponsors, fans, and coaches, and they fear the cancelling of sponsorships as well as receiving less playing time from their coaches. Fortunately, a recent situation arose in women’s professional tennis that forced the United States Tennis Association to quickly consider changes to pregnancy and discrimination policies.

Arguably the greatest female tennis player in history, Serena Williams has won twenty-three Grand Slam singles titles since 1999, as well as four Olympic gold medals and seventy-two total career singles titles. Williams recently took a leave of absence from competing as she became pregnant and gave birth to her child, Olympia, in September of 2017. She also unfortunately experienced severe complications from this pregnancy that added to the physical strain of giving birth. Despite her record-breaking athletic history, she returned from pregnancy leave to find that she was unseeded in the French Open this year. In professional tennis, seeds are awarded to the highest ranked players of the year, and unseeded players encounter additional obstacles in the tournament, such as facing highly competitive players very early on in the tournament. For such a successful and powerful athlete as Williams, not being awarded a seeded spot following her pregnancy was not only disrespectful, but also viewed as discriminatory.

As a result of the backlash that the actions of the French Open have received, the United States Tennis Association (USTA) has announced that they plan to alter their seeding procedure in order to take into account additional factors that may have influenced an athlete’s ranking, which will include pregnancy and the complications that arise from the condition. Wimbledon already reserves and occasionally exercises the right to alter computer calculated seeding if they feel there are additional factors (such as pregnancy) that should be taken into consideration. In support of Wimbledon’s practice, the President and Chairwoman of USTA, Katrina Adams, explained that players should not be penalized for exercising their rights to start a family, and that the new US Open policy will help the sport to achieve greater equality and strike down discriminatory practices. Adams compared the French Open’s actions to the business environment, stating that forcing a player to return from maternity leave to a lower ranked position would be the same as having a business executive return to an entry level position. If this happened in any company in the United States, the employer would be guilty of pregnancy discrimination. Why is this not the case with the Women’s Tennis Association?

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.

The Long Arm of the New Jersey Law Against Discrimination

May 30, 2018 | Smith Eibeler LLC

The New Jersey Appellate Division has reversed the trial court’s dismissal of an out of state resident’s claim of age discrimination under New Jersey Law Against Discrimination. The decision is an important reminder to employers that New Jersey’s strong public policy to eradicate discriminate in all its ugly forms may extend to non-New Jersey residents who suffer from discrimination that is protected under the New Jersey state law.

In the case Trevejo v. Legal Cost Control, Inc., and John Marquess, the employee, Susan Trevejo, lived in Massachusetts and worked remotely from her home for the employer, whose principal place of business was located in Haddonfield, New Jersey. In claiming that she had standing to sue under the New Jersey Law Against Discrimination, Ms. Trevejo pointed out the fact that she was provided a company computer to connect to the company’s corporate server in New Jersey and a company phone to communicate with other company employees, some of whom lived and worked in New Jersey. The employer argued that Ms. Trevino was never a resident of New Jersey at any point in her employment, never lived in New Jersey and never sought or received any benefits from the state of New Jersey. The employer also pointed out the fact that although Ms. Trevejo had traveled to New Jersey for business at times during her employment, she had not done so any time from 2009 through 2015.

Twelve years into her employment, the employer terminated Ms. Trevejo’s employment. In response, Ms. Trevejo filed a lawsuit alleging age discrimination under the New Jersey Law Against Discrimination. During the lawsuit, Ms. Trevejo’s employment lawyers requested broad discovery to prove she was entitled to pursue her age discrimination claims under New Jersey’s discrimination laws, including the nature and substance of her electronic and other virtual contact and connection to the employers’ New Jersey office as part of her day-to-day work activities.

New Jersey Passes Strongest Equal Pay Law in the Nation

April 25, 2018 | Smith Eibeler LLC

Governor Phil Murphy has signed into law the “Diane B. Allen Equal Pay Act”, which is rightfully being touted as the strongest equal pay law in the United States. The New Jersey Equal Pay Act amends the New Jersey Law Against Discrimination to specifically protect employees from discriminatory pay practices. It provides severe penalties to employers who violate the new law.

The New Jersey Equal Pay Act, which will be effective immediately on July 1, 2018, specifically prohibits employers from paying employees less than other employers because of their gender, race or other protected class. Employers must be able to refute a claim of wage discrimination by showing that any difference in pay is based upon a seniority system, a merit system or other legitimate bona fide factors (e.g. training, education, experience, quality or quantity of work).

The new law also provides some significant changes to the applicable statute of limitations. For example, the New Jersey Equal Pay Act strengthens the statute of limitations for claims based on pay equity to a period of six (6) years as opposed to the two (2) year statute of limitations

Court rules that Employer Violates New Jersey Discrimination Laws for Firing Employee who Refused to Sign Arbitration Agreement

April 2, 2018 | Smith Eibeler LLC

It is not uncommon for employers to make an employee’s execution of an arbitration agreement a condition of their employment at the inception of the employee’s employment. But what happens when, in the midst of employment, an employer all of a sudden demands an employee’s agreement to an arbitration agreement under the threat of termination? Does an employee have to sign the arbitration agreement in order to remain employed? What if the employee refuses to sign the arbitration agreement and, as a result, is suspended and not permitted to return to work by their employer?

A recent New Jersey Superior Court has held that an employer cannot take adverse employment action against an employee who refuses to sign an arbitration agreement that requires her to waive her statutory rights under the Law Against Discrimination.

In Cator v. Hotel ML/Coco Key West Resort et al., Plaintiff, a black female, had made complaints about race discrimination during the course of her employment. During the same time period, her employer implemented a new policy mandating, as a condition of her continued employment, that all current and prospective employees execute an arbitration agreement. Plaintiff refused to execute the arbitration agreement and waive her statutory rights to have her claims of race discrimination adjudicated in a court of law and by a jury of her peers. In response to her refusal to sign the arbitration agreement, the employer suspended her from work and advised her that she would not be permitted to return to work unless and until she signed the arbitration agreement. As a result, the employee filed a lawsuit for claims under the New Jersey Law Against Discrimination. One of the claims was specifically whether an employer unlawful retaliates against an employee for refusing to sign an arbitration agreement that waives their statutory rights under the law.

New Jersey To Enact the Nation’s Toughest Equal Pay Law

March 28, 2018 | Smith Eibeler LLC

The New Jersey Legislature passed legislation this week that mandates equal pay to all New Jersey employees and penalizes New Jersey employers who discriminate against women and other protected classes in their paychecks. The bill has now been sent to Governor Murphy, who has made clear that he will imminently sign the bill into law.

The bill, entitled the Diane B. Allen Equal Pay Act, is named after state senator Diane B. Allen who left her broadcasting job in 1994 after filing gender and age discrimination complaints with the Equal Opportunity Employment Commission. The New Jersey Equal Pay Act will modify the New Jersey Law Against Discrimination by strengthening the protections already provided by the current anti-discrimination law against employment discrimination by making it unlawful to discriminate against employees in their compensation.

Specifically, the New Jersey Equal Pay Act makes it an unlawful for an employer to pay a rate of compensation and benefits to employees of a protected class which is less than the rate paid to employees not in the same class for substantially the same work. Protected classes include such traits as sex, race, ethnicity, military status or national origin of the employee. Once it is signed into law, the New Jersey Equal Pay Act will prohibit an employer from reducing the rate of compensation of any employee to comply with the new law. This means that an employer who has been and continues to be in violation of the law cannot then decrease the compensation of any employee to the compensation of another employee who is being discriminated against in their compensation.

New Jersey Employee Found Eligible for Unemployment Benefits After Voluntarily Leaving Work Because of Continuous Harassment

March 8, 2018 | Smith Eibeler LLC

A recent New Jersey Appellate Court has confirmed that an employee has good cause to leave her job and be eligible for unemployment benefits if the reason for quitting is because she was continuously sexually harassed for an extended period of time.

In the case decided September 12, 2017, the employee worked as an administrative assistant for Surface Source International, Inc. (SSI) from February 2008 until she resigned in April 2014. According to the employee, the warehouse manager continuously called her names, swore at her and used many derogatory terms after she witnessed and confronted him making out with her supervisor in the warehouse. After she confronted her manager about what she saw, the warehouse manager started having a vendetta against her. The warehouse manager had a vendetta against her called her “[m]any verbal names; anything he could say to hurt me. He was commenting on the type of clothes I was wearing, the type of underwear I had on. He . . . stole personal property out of my desk, he vandalized my desk. He physically harassed me[.] [H]e touched me from behind, he had grabbed me. We . . . got into a physical altercation where he took me and slammed me into his desk.” further testified, “And he has done so much things to me, and I have continuously met with them and spoke with them and told them all this, and . . . they never did anything to help the situation.” SSI’s owner told her “that the devil he knows is better than the devil he doesn’t know . . . even though he was harassing me and tormenting me.”

The employee’s testimony that she made complaints to the company was admitted by SSI. In fact, the employee’s manager testified that the employee complained that she had been physically and verbally harassed, but excused SSI’s failure to properly investigate stating when the company confronted the warehouse manager, he would say that he “didn’t do anything.” The manager further testified the owner personally met with the manager and the company wrote him up after he slammed the employee into his desk. Even this undisputed testimony was not enough for the Appeal Tribunal to find that the claimant had good cause to leave the hostile work environment directed at her.

Court of Appeals Rejects Walmart Appeal Seeking to Overturn Disability Retaliation Verdict

May 24, 2016 | Smith Eibeler LLC

The United States Court of Appeals for the 3^rd Circuit has affirmed a New Jersey District Court’s decision denying post-trial motion for judgment by Walmart after the jury entered a verdict against them in favor of a former employer. The former employee, Barry Boles, claimed that he was unlawfully terminated by Walmart in retaliation for taking medical leave because of his disability. The jury agreed, and found Walmart liable for back pay damages in the amount of $130,000, emotional distress damages in the amount of $10,000, punitive damages in the amount of $60,000 and attorney fees and costs in the amount of $200,000. Walmart appealed the decision to the Court of Appeals.

In this case entitled, Barry Boles v. Wal-Mart Stores, Inc., the employee Mr. Boles had worked for Walmart for many years. Mr. Boles first went out on a medical leave on May 8, 2011, after going to the emergency room for a large blister on his leg. The large blister progressed into a five or six inch ulcer requiring Mr. Boles to take an extended medical leave of absence. Walmart eventually placed Mr. Boles on medical leave pursuant to the Family and Medical Leave Act from June 22, 2011 through September 10, 2011. During his FMLA leave, Mr. Boles’ treating doctor provided a certification that advised Walmart that Mr. Boles would not be able to return to work until October/November, 2011.

On October 23, 2011, Mr. Boles returned to work, but learned that he could not log onto his computer. Mr. Boles attempted to reach out to the Market Human Resource Manager, Quawad McDonald, to find out his status, but his attempts were ignored by Mr. McDonald. Finally, on or about October 29, 2011, Mr. Boles received a letter from Mr. McDonald advising him that he had been terminated as of October 25, 2011 for “failure to return” to work.