hostile work environment lawyer

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.

3rd Circuit Recognizes Associational Discrimination Under Title VII

July 30, 2021 | Smith Eibeler LLC

The United States Court of Appeals for the Third Circuit held on July 29, 2021, that a white employee’s lawsuit against his former employer for workplace retaliation under Title VII could move forward. This decision is especially notable because it is the first time the Third Circuit has issued a directive on race-based associational discrimination. In the case Kengerski v. Harper, No. 20-1307, 2021 WL 3199225 (3d Cir. July 29, 2021) the plaintiff employee alleges he was fired in retaliation for complaining about his supervisor’s racist remarks targeting his bi-racial grandniece and Black and Asian coworkers.

Title VII Retaliation vs. Harassment Claims

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination and harassment based on race, color, religion, sex and national origin. It applies to all employers with fifteen or more employees, except for employees of the federal government, and it is enforced by the Equal Employment Opportunity Commission (EEOC). Under Title VII, an employer may not discriminate with regard to any term, condition or privilege of employment, including recruiting and hiring, deciding who to promote and transfer, assigning work, measuring performance, providing benefits and disciplining or firing. It means that no employee or job applicant can be treated differently in the workplace due to his or her protected characteristics. Importantly for the Kengerski plaintiff and others similarly situated, it also means that no employee, even if he or she is not part of a protected class, can be discriminated against at work based on his or her association with someone else who is part of a protected class. This unlawful practice is called “associational discrimination”.

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?

One Racist Comment Is Enough: How New Jersey Protects Employees From Workplace Harassment Where Other States Don’t

November 3, 2020 | Smith Eibeler LLC

While there are federal and state laws that protect employees from racial discrimination in the workplace throughout the country, these laws are not always uniform in terms of the severity or pervasive enough of the complained of conduct that constitute an actionable hostile work environment. Generally speaking, when the racially discriminatory conduct is so severe or pervasive as to change the nature of the job, a worker has grounds to bring a lawsuit for hostile work environment. But what type of conduct meets the standard for a successful claim? More specifically, can a single instance of race-based discrimination create a hostile work environment? The answer may depend on where the suit is filed. For example, in New Jersey, our courts have held that a single racial epithet can constitute a hostile work environment, while other courts outside New Jersey have adopted a strict rule that a single racial epithet, no matter how offensive, can never be enough to constitute a hostile work environment.

Earlier this month, a judge in the federal district court for the Northern District of Alabama granted a defendant employer summary judgment against three plaintiff employees’ claims of racial discrimination and hostile work environment. In Bone v. Alliance Investment Co., LLC, Case No. 5:18-cv-01706-LCB (N.D. Ala. Oct. 8, 2020), three African American carpenters sued their employer, claiming that supervisors frequently referred to them as the n-word behind their backs and routinely assigned them more physically demanding work than their white counterparts. One plaintiff was called the n-word directly to his face and others overheard it being used. The company argued that the employees had failed to present evidence that the harassing conduct was severe or pervasive enough to alter the terms or conditions of their employment. Agreeing, the court dismissed the hostile work environment claim with prejudice.Specifically, the court found that in order to establish a hostile work environment in the Eleventh Circuit, the plaintiffs had to show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The test for severe and pervasive conduct is both subjective and objective, meaning that the environment became what a reasonable person would find hostile or abusive as well as one that the victim subjectively perceived to be abusive. The court found that although the behavior was subjectively abusive to plaintiffs, under the totality of the circumstances, a reasonable person would not find the workplace to be hostile. Recognizing the severity of the n-word, the court still held that because the plaintiffs’ job performance was not impacted by it, their claim for hostile work environment failed as a matter of law.

The Bone case is reminiscent of a 2019 case decided by recently appointed Supreme Court Justice, Amy Coney Barrett, when she sat on the U.S. Court of Appeals for the Seventh Circuit. In Smith v. Ill. Dept. of Transportation, 936 F.3d 554 (7^thCir. 2019), an employee for the Illinois Department of Transportation was fired after a probationary period of employment during which he allegedly performed quite poorly. The employee sued the Department, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The Circuit Court affirmed the dismissal of his claims for failing to establish a hostile work environment as a matter of law. In his lawsuit, the employee claimed he was treated differently from other employees due to his race and his supervisor called him the n-word during a confrontation. The employee was fired two weeks after the confrontation. Addressing the hostile work environment claim, the Circuit Court found that the majority of the harassment he cited was unconnected to his race and arose from generally unpleasant and profane language that was used routinely toward all employees. The one incident, however, that plainly constituted race-based harassment was when one of his supervisors called him a “stupid ass [n-word]” after finding out that he had filed a complaint with the Equal Employment Opportunity office. The Court noted that “while there is no ‘magic number of slurs’ that indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’” Even still, a plaintiff cannot win a hostile work environment claim simply by proving that the word was said unless he can also show that it altered the conditions of his employment. Unlike in Bone, the Seventh Circuit Court found that the plaintiff failed to prove even his own subjective belief that being called the n-word created a hostile work environment. The court found that because his entire employment had been rocky, and by the time he was called the n-word his termination proceedings were already under way, there was no proof that the racial slur changed the always unpleasant work environment. Because he could not show that the distress he suffered from being called the n-word was distinct from the distress he suffered routinely at work, the plaintiff’s claim for hostile work environment was dismissed.

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.

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.