Sexual Harassment

NJ State Troopers File Lawsuit Following Years of Homophobic and Racial Harassment

October 9, 2021 | Smith Eibeler LLC

New Jersey’s Law Against Discrimination provides some of the strongest protections against unlawful workplace discrimination against individual members of protected classes such as race, gender and sexual orientation. Unfortunately, even with strict anti-discrimination laws and a state-wide push towards inclusivity, numerous instances of homophobic workplace discrimination and harassment continue to rise. Recently, two New Jersey State Troopers have filed suit in the Monmouth County Superior Court, alleging years of workplace discrimination within the NJ State Police Department, based on their sexual orientation.

Lieutenants John Hayes and Jamie Lascik joined the State Police in 2001, and have worked closely with New Jersey and the New Jersey State Police (“NJSP”) to create an inclusive and diverse workplace. Hayes, who is an openly gay man, and Lascik, who is a gay African American woman, alleged repeated instances of discrimination based on their sexual orientation. Their suit alleges five violations of the New Jersey Law Against Discrimination and provides detailed situations where supervisors and other employees subjected them to ongoing harassment for their sexual identity. As summarized in the lawsuit, the “ongoing harassment and disparate treatment constitute a continuing violation,” of the New Jersey Law Against Discrimination, and the situation consisted of a pattern of retaliatory hostility, recurring intimidation, and differential treatment by supervisors over the course of many years, up to and including 2021.

The New Jersey Law Against Discrimination is one of the most comprehensive anti-discrimination laws in the country. It prohibits employment discrimination and bias-based harassment on the basis of sex, sexual orientation, race, and multiple other factors. The New Jersey Law Against Discrimination also prohibits both the creation and allowance of a hostile work environment that occurs when an employee shows that their severe and pervasive harassment would not have occurred but for the employee’s protected class membership status, and that a reasonable person of the same protected class would believe that the conditions of employment have been altered to where work environment is hostile or abusive. A hostile work environment based on sexual orientation occurs when an employee is subjected to harassing and unwelcome conduct that occurs because of the employee’s sexual orientation.

Hudson County Prosecutors Office Employees to Be Disciplined for Inappropriate Social Media Posts

September 18, 2021 | Smith Eibeler LLC

Employees within the Hudson County Prosecutor’s Office could face serious disciplinary action as a result of a workplace complaint investigation conducted by an outside law firm in response to unlawful employee conduct. The investigation was prompted by a series of offensive social media posts shared by Hudson County Prosecutor’s Office employees, posted on Facebook and within their internal workplace messaging app, “Slack”.

Under New Jersey law, employers must maintain an effective policy against unlawful harassment and discrimination at the workplace. With an effective anti-harassment policy in place, harassment investigations may shield an employer from hostile work environment claims under the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination is one of the nation’s strongest legal protections for employee civil rights against discrimination and threats of harassment, including sexual harassment. The New Jersey Law Against Discrimination requires employers to investigate all complaints of harassment and discrimination promptly, thoroughly and completely.

Serious hostile work environment concerns emerged at the Hudson County Prosecutor’s Office after racist jokes’ and offensive social media comments raised tensions amongst assistant prosecutors. In March 2021, the initial internal investigation began with an examination of Assistant Prosecutor Bill Specht and Agent Kelly Sisk over “offensive and sickening” posts the two allegedly made on social media and shared via Slack. Screenshots from March 2021, were shared of Specht’s conversations within the workplace Slack chatroom, writing that “Infoshare identifies as Mexican. It sleeps when the sun is hottest.” Specht additionally shared a number of racially offensive Facebook posts, following the police killing of George Floyd and the shooting of Jacob Blake. These posts alluded to the exoneration of law enforcement officials in officer-involved shootings, an especially controversial subject for someone in his position.

Cuomo’s Definition of Sexual Harassment with New York Law

May 21, 2021 | Smith Eibeler LLC

New York Governor Andrew Cuomo has been under fire since March 2021, having been accused by over a half-dozen women of sexual harassment, including staffers who say the harassment took place at work. Some are surprised by the allegations given that Governor Cuomo has publicly been seen as one of the nation’s leaders in protecting the rights of women and fighting workplace sexual harassment.

On August 12, 2019, Governor Cuomo signed legislation under the New York State Human Rights Law that made that state’s sexual harassment law one of the strongest in the country. The legislation included extending the statute of limitations for sexual harassment claims from one year to three years, and rejecting the requirement found in other states, including New Jersey, that the harassing conduct must be severe or pervasive to be unlawful. These protections were in addition to the laws that Governor Cuomo signed in April 2019 as part of his 2019 Women’s Agenda. That agenda required all state contractors to affirm that they have a sexual harassment policy and that all employees have received training; prohibited employers from imposing mandatory arbitration to deal with sexual harassment claims and limited non-disclosure agreements to only those situations in which they were expressly requested by the harassment victim; required public employees found to have intentionally sexually harassed someone to reimburse the state for any judgment against it; and extended the law’s protections to contractors, subcontractors, vendors, consultants and other non-employees providing services in the workplace.

The New York State Equal Employment Opportunity Handbook defines sexual harassment as “unwelcome conduct which is either of a sexual nature, or which is directed at an individual because of that individual’s sex when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the reporting individual is not the intended target of the sexual harassment . . . Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, or which interfere with the recipient’s job performance. . . . Quid pro quo sexual harassment occurs when a supervisor or other person with authority makes an employee’s submission to a sexual demand a condition of his or her employment. Sexual harassment need not be severe or pervasive to be unlawful, and can be any sexually harassing conduct that consists of more than petty slights or trivial inconveniences. It is not a requirement that an individual tell the person who is sexually harassing them that the conduct is unwelcome. In fact, the Human Rights Law now provides that even if a recipient of sexual harassment did not make a complaint about the harassment to the employer, the failure of the employee to complain shall not be determinative of whether the employer is liable.”

Ocean City Beach Patrol Accused of Rampant Sexual Harassment and Assault of Teen Lifeguards

April 23, 2021 | Smith Eibeler LLC

For many teens, a summer job is a rite of passage, a way to earn money and gain independence, and start the transition into adulthood. For many teen girls working for Ocean City Beach Patrol, their summer lifeguarding jobs allegedly also came with unwanted groping, sexual harassment and sexual assault at the hands of their male supervisors. In recent news, local media sources have reported that a viral Instagram account called @ocbp_predators has led the Cape May County Prosecutor’s Office to investigate hundreds of allegations of sexual harassment and assault by members of the Ocean City Beach Patrol (OCBP). Reading through the accounts is disturbing. According to the anonymous posters, most of the misconduct was perpetrated by adult men in their thirties and forties against teenaged female lifeguards working for the OCBP.

Providing a link to RAINN, the national sexual assault hotline, the Instagram account contains allegations of male guards, some of whom are also teachers in Ocean County public schools, being involved in incidents where their teenaged direct reports were continuously sexualized at work and plied with drugs and alcohol at after-work parties, where often they would wake up unaware of what had happened to them the night before. Several of the Instagram posts referred to older male lifeguards repeatedly citing New Jersey’s age of consent, which is 16, to assert their entitlement to have sexual contact with the younger girls they supervised. However, New Jersey bars any adult in a position of authority having sexual contact with employees under the age of 18.

It seems clear that if the allegations against the male lifeguard supervisors are true, they could be facing criminal penalties, but that is not always the case. Sexual assault against teenagers is a significant societal problem that often goes unaddressed. According to TeenHelp.com, teenagers account for at least half of all reported instances of sexual abuse, with teens of working age (16-19) being over three times as likely as the general public to be victims. Additionally, once victimized, the same teen is more likely to experience further abuse, and when the victim is a high school aged female, she is more likely than others to develop eating disorders, risky sexual behaviors, unwanted pregnancies, and suicidal ideation. Despite these staggering statistics, less than one-third of sexual assaults against teens are reported. The low reporting rate may be due in part to the fact that only about half of abusers are eventually arrested and a measly 16% are imprisoned. Of those who do go to jail for their crimes, the average sentence is about 4 months. Approximately 80% of jailed rapists report that their victims were under the age of 18. What laws, other than the criminal code, are there to protect these girls?

Sexual Assault At Women’s Prisons Violates the New Jersey Law Against Discrimination

February 18, 2021 | Smith Eibeler LLC

“There’s a long and ugly history at Edna Mahan,” said New Jersey Attorney General Gurbir Grewal. He was referencing not only the January 11, 2021 attack in which prison guards wearing riot gear beat, pepper sprayed and sexually assaulted the female inmates housed at the Edna Mahan Correctional Facility for Women in Clinton, New Jersey. The long history of sexual abuse at Edna Mahan dates back at least to the early 1990s, and a searing report issued in the Spring of 2020 by the Department of Justice has exposed the prison as a hostile and abusive environment, not because of the inmates’ crimes, but because of the guards whose duty it has been to house, feed and protect these women.

Around midnight on January 11, 2021, over two dozen officers forcibly removed the women inmates from their cells, resulting in broken bones, concussions, and in at least one instance, forcible sexual penetration. Although we typically protect the privacy of harassment and assault victims, some of the women who were attacked have chosen to come forward publicly. Inmate Ajila Nelson said she was beaten and sexually assaulted in her cell during the extraction. Desiree Dasilva was punched repeatedly in the head resulting in a broken eye socket and said an officer left a boot print on her arm. Emmalee Dent was punched in the head approximately twenty-eight times by one of the guards as she pressed herself against a wall and attempted to protect herself from the blows. Inmate Faith Haines told a local media outlet that the attack started when another prisoner became upset that her cell had been searched while she was outdoors for recreation. Reportedly, Sean St. Paul, an administrator who was suspended in the wake of the attack threatened the inmates with similar discipline “every night” that they “acted up”.

A few weeks later, three prison guards – Sergeant Amir Bethea, Sergeant Anthony Valvano and Officer Luis Garcia – were accused of filing false reports in an effort to cover up the attack and were charged with official misconduct, tampering with public records, and Garcia was charged with aggravated assault for the beating of Emmalee Dent.

The Persistent Problem of Sexual Harassment and Assault within the Military

January 14, 2021 | Smith Eibeler LLC

Sexual harassment and assault against female members of the military remains a persistent problem that has rightfully received heightened attention in the last few years in the hope that it can be eradicated from all branches of our armed forces. Gender-based harassment and assault are prevalent in the world of veterans affairs as well, and the area of veterans’ health care in particular has come under scrutiny.

According to a national Health Services Research and Development survey conducted by the U.S. Department of Veterans Affairs (VA), 25% of women patients at VA health care facilities have experienced sexual or other harassment from other veterans. The VA defines patient harassment as “unwelcome physical, non-verbal or verbal behavior that interferes with a veteran’s access to and sustained engagement with VA health care. Harassment creates an intimidating, hostile or offensive health care environment.” The VA also provides examples of harassing conduct. For instance, the VA recognizes the failure to acknowledge women as veterans as gender harassment, and it occurs when someone asks a woman veteran if she is accompanying her husband to an appointment or questions her about the authenticity of clothing identifying a branch or era of service. On Vantage Point, the official blog of the VA, it also lists catcalls, whistles, stares, leering or ogling, telling women to smile, telling women they are too pretty to be veterans and following or cornering someone as examples of gender-based harassment. By all appearances, the VA is working to identify, educate veterans about, and eradicate this type of sexual harassment.

However, some question the VA’s dedication to gender equality and safety in its health care facilities after Andrea Goldstein, senior policy advisor on female veterans to the House Committee on Veterans Affairs and lieutenant commander in the U.S. Navy Reserve, alleged she had been sexually assaulted at a government-run veterans’ hospital. Goldstein, who has chosen to make her identity known, claimed in September 2019 that while she was waiting in line to buy food in the main lobby of the VA hospital in Washington, D.C., a contractor rubbed his body against hers and made suggestive comments of a sexual nature. Since that time, the VA and specifically its Secretary of Veterans Affairs for the Trump administration Robert Wilkie’s handling of her claim have come under scrutiny. The ensuing investigations have raised serious questions about how the VA handles complaints of sexual harassment, assault and retaliation and point to larger societal problems of victim-blaming and refusing to address systemic problems of gender equality and respect for female veterans.

Sexual Harassment and Discrimination in New Jersey Police Departments

October 14, 2020 | Smith Eibeler LLC

Two recent New Jersey lawsuit settlements highlight the prevalent issues of sexual harassment and sex discrimination that woman police officers continue to face in the workplace. These cases illustrate how important it is for male-dominated work environments such as police departments to take preventative measures against sexual harassment and to take immediate remedial measures when it occurs.

Last month, it was reported that Franklin Township settled a gender discrimination and retaliation lawsuit with a female police lieutenant, Kristen Durham for the sum of $300,000. The settlement also allows Durham to remain on paid personal administrative leave until she achieves 25 years of service credit in the New Jersey Division of Pensions, Police and Firemen’s Retirement System.

Durham, of Robbinsville, started working for the Franklin Township Police Department in 1996, where women make up only about ten percent of the department. Durham is the first and only female lieutenant. In her complaint, she alleged that her male supervisors publicly engaged in extramarital affairs and openly discussed their sexual activities. One male supervisor even ordered Durham to watch a subordinate with whom he was having an affair when he was not at work and to report back to him if any male officers spoke to her. Durham’s responsibilities included recruiting for the department and in that capacity, she personally recruited nine African American officers, and often advocated for female, Black and Hispanic officers to receive equal treatment to their white male counterparts in the department.

MTV Jersey Shore Star Settles Sexual Harassment Lawsuit for 350K

September 28, 2020 | Smith Eibeler LLC

In recent celebrity employment law news, former reality television star, Angelina Larangeira (nee Pivarnick) settled a federal employment discrimination lawsuit against the Fire Department of the City of New York (FDNY) for $350,000. Pivarnick has been working as an Emergency Medical Technician (EMT) in Staten Island since 2016, where she alleges she was the victim of sexual harassment and assault. Specifically, Pivarnick sued the FDNY as well as one of her supervisors, Lieutenant Jonathan Schechter, alleging a hostile work environment and severe sexual misconduct that took place between 2017 and 2018.

In the Complaint, Pivarnick alleges that she was subjected to “repeated and unwelcome sexual advances, degrading comments about her body, vulgar sexual comments, inappropriate questions about her private relationships and, in one instance, the groping of an intimate part of her body without her consent”. This sexual misconduct allegedly took place in person at her work and via text message, when her supervisor sent her a message stating, “Your ass looked amazing and I wish I wasn’t working or in uniform because I definitely would’ve kissed those amazing lips”. As in many sexual harassment cases, Pivarnick was also assaulted. In her pleadings, she alleged that in May 2018, her supervisor groped her buttock and “made contact with her vaginal area.”

At the time her suit was filed, Pivarnick released a statement: “I suffered severe sexual harassment while working for EMS and was retaliated against by my management when I complained internally. It should go without saying that what I experienced has nothing to do with television or entertainment. Like all women, I am entitled to be treated with dignity and respect at work, and I should not have to accept unwanted sexual advances, crude comments about my body, or physical assault.” In response to news of her settlement breaking, Pivarnick stated, “I said when the case was filed that it had nothing to do with television or entertainment and that remains true. Sexual harassment is serious and has devastating consequences for so many women. It has for #MeToo. Although I experienced horrendous treatment at EMS, I’m pleased with the resolution of my case and I look forward to using my voice to speak about the need to protect all women from sexual harassment.”

A Long Way To Go: NJCASA Releases Report on Sexual Harassment in New Jersey Politics

August 19, 2020 | Smith Eibeler LLC

This month the New Jersey Coalition Against Sexual Assault (NJCASA) released its report, “It’s Everywhere, It’s Everything: The Report of the New Jersey Coalition Against Sexual Assault’s 2020 Survey on Misogyny & Sexual Misconduct in New Jersey Politics.” The report publishes survey results received from employees within New Jersey’s political sphere regarding their experiences of sexual harassment and misconduct in the workplace. It also makes recommendations for improving workplace culture around sexual harassment and misconduct, including increased education and training, the development of transparent, predictable reporting processes, and the creation of a culture of accountability in NJ politics.

Survey respondents held a variety of positions within state politics, including advocates and activists, state government employees, campaign staffers, lobbyists, partisan political operatives, staffers to elected officials, those holding elected office themselves, legislature employees, and county and municipal government employees. The largest reporting groups were advocates and activists (16%), state government employees (13%), campaign staffers (13%) and partisan political operatives (13%). The vast majority of respondents were white (85%), non-immigrant (94%), heterosexual (81%), cisgender (79%), highly-educated (89%) women (78%). As the report acknowledges, this means that this particular study provides a window into the sexual harassment and misconduct experienced and witnessed by a highly privileged group, and indicates that despite holding such privilege, these respondents were often without the proper resources to prevent, report, or obtain justice in the face of harassment and misconduct in the workplace. The report stressed the importance of interpreting the results as framed and informed by one specific type of woman.

It comes as no surprise that most survey participants (57%) reported having either experienced and/or witnessed sexual harassment and misconduct during their work in NJ politics, and that women are far more often the targets of this misconduct and more likely to report it than men. By occupation, 75% of county government employees reported experiencing harassment, and 77% of campaign staffers and 76% of lobbyists reported witnessing it. When defining the specific types of harassment encountered, verbal remarks and misogynistic comments were the most frequently reported and combined make up 45% of the total. Three percent of respondents reported having been raped. State government employees reported that misogyny is “very prevalent” in their workplaces.

Questions Arise as to Whether Employers Will be Able to Enforce Arbitration Agreements in Employment Contracts When it Comes to Harassment, Discrimination and Retaliation

August 6, 2020 | Smith Eibeler LLC

A New York State trial court recently ruled that the arbitration clause in an employment contract requiring an employee to submit to binding arbitration for claims against her employer, including sexual harassment claims, was unenforceable following amendments to New York State’s Human Rights Law in 2018. The decision creates a split in authority between New York State and federal courts, following a 2019 decision in the Southern District of New York upholding the enforceability of arbitration agreements in employment contracts. That court found that the Federal Arbitration Act (FAA) preempts the New York statutory prohibition. These contrasting decisions may create uncertainty around the viability of employee/employer arbitration agreements in New York as they relate to harassment and discrimination claims.

This confusion exists in New Jersey as well. On March 18, 2019, Governor Murphy signed legislation that, among other things, prohibits mandatory arbitration of discrimination, retaliation or harassment claims as against public policy. While other jurisdictions, including New York, have enacted similar legislation pertaining to sexual harassment claims, the New Jersey law covers all claims arising under the New Jersey Law Against Discrimination (NJLAD). The New Jersey law also states that confidential settlement agreements “shall be deemed against public policy and unenforceable”. It is important to note that the prohibition of arbitration does not apply to collective bargaining agreements. It remains unclear whether New Jersey courts will find that this state law is preempted by the FAA, but nonetheless, employers run the risk of violating the new law if arbitration provisions are included in employment contracts going forward. The new law is not retroactive. It applies “to all contracts and agreements entered into, renewed, modified or amended on or after” March 18, 2019.

Since the signing of New Jersey’s law prohibiting the inclusion of arbitration agreements in employment contracts, New Jersey courts, both state and federal, have upheld the validity of arbitration clauses that were signed before enactment of the law.