Sexual Harassment

New Jersey Sexual Harassment Law: Revisiting Lehmann v. Toys ‘R’ Us

January 15, 2019 | Smith Eibeler LLC

In the midst of a national discussion regarding sexual harassment in the workplace, the laws prohibiting such egregious behavior as well as the methods of reporting and investigating related complaints have come under scrutiny. Many businesses across the country are reviewing their anti-harassment policies to become legally compliant and limit their liability when sexual harassment occurs at their workplace. In New Jersey, a claim of sexual harassment was first recognized in 1993, in the landmark New Jersey Supreme Court case Lehmann v. Toys ‘R’ Us. Commonly referred to as Lehman by New Jersey employment lawyer and judges, this case set the standard for stating a cause of action for a claim of sexual harassment that created a hostile work environment.

Sexual harassment cases are typically divided into two categories: quid pro quo harassment or harassment that generates a hostile work environment. Quid pro quo sexual harassment occurs when an employer or supervisor attempts to make an employee submit to sexual demands as a condition of his or her employment. Sexual harassment that creates a hostile work environment was ill defined prior to 1993, which made Lehmann v. Toys ‘R’ Us the landmark case for sexual harassment cases in New Jersey.

In 1986, Ms. Theresa Lehmann’s employment with Toys ‘R’ Us was drastically altered upon the hiring of Don Baylous as the Director of Purchasing Administration. Under his supervision, Ms. Lehmann and her female coworkers began to experience pervasive sexual harassment that varied from sexualized comments about Ms. Lehmann’s breasts to an instance where Mr. Baylous physically pulled Ms. Lehmann’s shirt over her head to expose her breasts. Ms. Lehmann attempted to report the conduct to several managers, but very little was done to remedy the situation. Instead of addressing Mr. Baylous’s behavior, Ms. Lehmann was offered a transfer to a different department. She rejected this, and later resigned as a result of the harassing conduct and the retaliation she experienced from reporting it. In response to this inadequate managerial reaction, Ms. Lehmann submitted a formal legal complaint of sexual harassment that was initially heard by a trial court. The trial court dismissed all causes of action except battery. Ms. Lehmann appealed, and the appellate court reversed the trial court’s dismissal of her claims of a hostile work environment brought on by sexual harassment, which they remanded for further fact finding. The case eventually found its way to the New Jersey Supreme Court, where it developed into a monumental case in New Jersey court history.

Katie Brennan files Emergent Application Seeking to End the State of New Jersey’s Use of Strict Confidentiality Directive

January 8, 2019 | Smith Eibeler LLC

Smith Eibeler, LLC, on behalf of our client, Katherine Brennan, has filed an Order to Show Cause For Temporary and Preliminary Restraints against the State of New Jersey (hereinafter, the “State”), from (1) enforcing the “strict confidentiality directive” found in N.J.A.C. 4A:7-3.1(j) against Ms. Brennan and any witnesses in the EEO/AA investigation being launched in response to her December 4, 2018, testimony before the Legislative Select Oversight Committee (“LSOC”)(hereinafter, the “EEO/AA Investigation”); (2) requiring Ms. Brennan to participate in any EEO/AA investigation until after this litigation and any criminal proceedings resulting from Ms. Brennan’s allegation of sexual assault are completed; (3) requiring Ms. Brennan and other witnesses in the EEO/AA Investigation to sign the “strict confidentiality directive” form; (4) requiring the EEO/AA to investigate the numerous violations of the State’s Policy Prohibiting Discrimination in the Workplace (“State Policy”) as set forth in the Complaint; and (5) declaring the “strict confidentiality directive”of N.J.A.C. 4A:7-3.1(j) as null and void.

For the past year, the State has refused to conduct any investigation into any of Ms. Brennan’s reporting that she had been raped by Alvarez. Ms. Brennan exhausted all possible internal avenues of recourse and received no aid or support. Having no other option, Ms. Brennanwas compelled, as a last resort, to bring her allegations into public light. On October 14, 2018, her story was published in The Wall Street Journal. The article laid out in detail not only the rape Ms. Brennan had endured, but also her extensive efforts to prompt the State, through complaints to numerous high level State officials, to take action.

Ms. Brennan’s act of publicly telling her story accomplished what her numerous internal complaints and reports could not: it triggered investigations. As a result of the October 14 Wall Street Journal article, in or about October 2018, numerous investigations and/or reviews were launched in various departments of State and county government, including: (1) an ongoing review by the Middlesex County Prosecutor’s Office of the criminal investigation conducted by the Hudson County Prosecutor’s Office (“HCPO”) into Ms. Brennan’s criminal complaint; (2) a review by Attorney General Gurbir Grewal and the Office of Public Integrity and Accountability (“OPIA”) into Hudson County Prosecutor Esther Suarez’s involvement in the investigation of Ms. Brennan’s allegations of sexual assault; (3) the ongoing investigation by the LSOC into how sexual misconduct complaints are handled by the state, as well as hiring practices; (4) Governor Murphy’s directive to the Division of EEO/AA to review policies and procedures for addressing allegations of sexual misconduct; and (5) an investigation on behalf of the Office of the Governor by former Supreme Court Justice Peter Verniero into the hiring of Alvarez.

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.

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.

Opening the Courthouse Doors: Employers Move Away from Arbitration

December 3, 2018 | Smith Eibeler LLC

An inspiring development is taking place for victims of sexual harassment in the workplace. Employees who are subjected to sexual harassment at work have faced an increasingly prevalent barrier to getting justice: mandatory arbitration. This has meant that for many employment disputes, the courthouse doors have been closed, requiring employees to instead seek relief through arbitration. Earlier this month, Facebook announced that they will be amending their arbitration agreements to no longer require mandatory arbitration for claims of sexual harassment in the workplace. This move comes on the heels of similar announcements earlier this year by Google, Lyft, and Uber, following a wave of protests by employees who felt that the system of requiring mandatory arbitration of all employment disputes contributed to a pervasive culture of sexual harassment.

Arbitration agreements were disfavored historically. Beginning in England in the 17th century, our legal tradition held that arbitration agreements were freely revocable, up to the point where a dispute was actually subjected to arbitration. This remained the controlling law in the United States up until 1925, when Congress passed the Federal Arbitration Act, signaling a change in how disputes would be resolved going forward. This has gradually led to an increase, and in recent years an explosion, in the prominence that arbitration has played.

Today, it has become the norm for employers to require all new hires to sign arbitration agreements at the start of their employment that bar the employees from suing the employer for any claims arising out of their employment. A 2017 survey of 1,500 employers conducted by the Economic Policy Institute produced some startling statistics showing just how widespread arbitration has become in the workplace. According to the survey, among companies with 1,000 or more employees, 65% have mandatory arbitration provisions. Looking at the employee side, among private-sector non-union employees, 56% are subject to mandatory arbitration. Extrapolated out, that covers over 60 million American workers.

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.

Court Affirms Jury Verdict Against Costco for Customer Sexual Harassment Toward Employee

September 18, 2018 | Smith Eibeler LLC

A federal Court of Appeals has affirmed a jury verdict in favor of a former Costco employee in connection with her claim of a hostile work environment based upon sexual harassment by a customer. This case reaffirms that an employer can be held legally responsible for allowing a hostile work environment created by non-employees if the conduct is severe or pervasive enough to render the employee’s work environment hostile.

In the matter of EEOC v. Costco Wholesale Corp., the EEOC sued on behalf of a former Costco employee, Dawn Suppo. Ms. Suppo was initially employed as a seasonal, part-time employee in 2009 and then became a regular, part-time employee in May, 2010. Around the time she became a regular employee, a customer named Thad Thompson began approaching Ms. Suppo and asking her personal questions that her uncomfortable. Initially, Ms. Suppo did not report the interactions to her supervisor or other management. However, in or about July/August, 2010, the conduct did not stop and Ms. Suppo informed her supervisor of Mr. Thompson’s harassing conduct and the fact that she was scared of him. Her supervisor instructed her to notify him if she sees Mr. Thompson again.

Soon thereafter, Ms. Suppo noticed Mr. Thompson in the store again watching her through the store aisles. Ms. Suppo reported to her supervisor that Mr. Thompson was back in the store stalking her and that she was scared of him. As a result, Ms. Suppo’s supervisor and other management brought Mr. Thompson into the warehouse office and instructed him to leave Ms. Suppo alone. Mr. Thompson responded with anger and loudly yelled that it is a “free country” and that he had “freedom of speech.” Ms. Suppo was extremely scared at this point and decided to call the police and file a report. Later that day, the one of the Costco Assistant Managers yelled at Ms. Suppo for calling the police and instructed her to be nice to Mr. Thompson.

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.

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.