Articles Posted in Discrimination and Harassment

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We have negotiated many settlement agreements for claims brought under the New Jersey Law Against Discrimination (“LAD”), the Conscientious Employee Protection Act (“CEPA”), and various other New Jersey laws that have included a provision barring the settling employee from seeking future employment with the defendant employer.  Employers argue in favor of including these clauses in order to prevent future claims of retaliation in the event the employer does not agree to re-hire the employee.  Truth be told, most employees have no desire to work again for the offending employer, but these no re-hire provisions can become complicated when companies are sold and/or merged and the employee seeks future employment with the re-constituted employer.

A federal court in New York (see, Reyes v. Hip at Murray Street) recently refused to approve a proposed settlement for a lawsuit brought under the Fair Labor Standards Act because it contained such a no re-hire provision.  It will be interesting to see if there is more push back on these clauses in settlement agreements for a wider range of employment law claims.  Stay tuned!

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The New York Times reported today about a study recently undertaken by Rutgers and Syracuse universities.  Researchers sent resumes and cover letters on behalf of fictitious applicants for thousands of accounting jobs.  Disappointingly, they found that employers expressed interest in candidates who disclosed a disability about 26 percent less frequently than in candidates who did not.  This could explain the low national employment rate for persons with disabilities.

The researchers created two separate resumes: one for a highly qualified candidate with six years of experience, and one for a novice candidate about one year out of college.  For each resume, they composed three different cover letters: one for a candidate with no disability, one for a candidate who disclosed a spinal cord injury in the letter, and one for a candidate who disclosed having Asperger’s syndrome, a disorder that can make social interactions difficult.

Interestingly, employers had less interest in interviewing the experienced candidate that was disabled than the disabled candidate just out of school. Employers were about 34 percent less likely to show interest in an experienced disabled candidate, but only about 15 percent less likely to express interest in a disabled novice candidate.  The researchers speculated that the steeper drop-off in interested for experienced disabled candidates arose because more experienced workers represent a larger investment for employers, who must typically pay such workers higher salaries and assume the employment relationship will last longer.  Also, experienced workers are also more likely to interact with clients on a regular basis so employers may believe that hiring these workers are riskier.

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According to the Insurance Journal, retaliation claims by employees were the most frequently asserted type of employment claim in fiscal year 2014.  The data comes from the Equal Employment Opportunity Commission, the federal agency which investigates claims of employment discrimination.  In fiscal year 2014, the percentage of claims which asserted that an employer retaliated against an employee for participating in a complaint of discrimination reached an all-time high of 42.8%.  Next on the list were, in order, race, sex (including pregnancy and sexual harassment), disability age, national origin, religion, color, equal pay act, and genetic information.

The EEOC data shows that employment discrimination claims in general are decreasing nationwide.  I see this as a positive development because it indicates that, at least to some degree, employers appear to be getting the message that discrimination is wrong, both from a moral and an economic perspective.  However, the rise in retaliation claims is troubling.  This could indicate that the reason why discrimination claims are in decline is not because there is less discrimination going on, but because employees are fearful of retaliation if they report discrimination.  We would like to see a decline in discrimination coupled with a decline in retaliation.

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A McDonald’s employee was told to “take it easy like my grandmother and retire,” according to a case currently pending before a federal district court in Pennsylvania.  She was apparently working more slowly than McDonald’s wanted, so they fired her due to her “poor health and age.”  The employee sued under the ADA, ADEA, and Pennsylvania Human Relations Act (PHRA), alleging age and disability discrimination.  The evidence in the case includes the fact that McDonald’s had a “hit list” of older workers who it was about to terminate.  The employee’s request to include this evidence at the trial was granted over McDonald’s objection.  The court found that trial testimony by a witness regarding the hit list (in which the employee’s name was included) would not be hearsay.  The “hit list” was also deemed an “admission” under the Rules of Evidence.

We will continue to monitor this interesting case.  In the meantime, if your boss tells you it’s time to retire . . . tell him it’s time for you to call an employment lawyer.

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In a recent decision of the New Jersey Superior Court, Appellate Division, the court reversed a grant of summary judgment in favor of the employer, PSE&G.  The employee, a female manager in her forties, had made numerous complaints of a “glass ceiling” (my words) at PSE&G to her supervisors and Human Resources over a number of years.  According to the decision, the employee alleged that her supervisor finally had enough of her complaints and began “investigating” her for violations of the company’s expense reimbursement policy.  PSE&G then fired the employee based on its finding that she had, it alleged, violated the policy in certain respects.  The employer filed a motion for summary judgment, arguing that the termination was proper.  The employee argued that the investigation and firing were pretextual; in other words, that these actions were retaliatory and false.  The trial judge agreed with the employer, and the case was dismissed.

The appellate court reversed this decision and reinstated the complaint.  The court noted that the employee had provided evidence that at least one male peer had also “misused” his company expense accounts, without repercussion.  The company argued that this male peer had permission to do so, and that the female employee did not.  However, since questions of fact like this can only be decided by a jury, and not by a judge, the appellate court ruled in favor of the employee.

The takeaway from this case is that discrimination and retaliation claims can rise and fall upon one crucial detail.  If you have experienced discrimination or retaliation at work, you need a smart employment attorney who can identify these crucial facts and use them to their advantage.

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In a recently reported decision, the variety store chain Dollar General agreed to pay a settlement of over $4,000,000 to resolve a class action lawsuit which alleged that it violated the Fair Credit Reporting Act by using credit reports improperly in denying employment to job applicants.

Under FCRA, if an employer seeks to use a consumer credit report to evaluate a job candidate for employment, it must 1) get the applicant’s consent before obtaining the report, 2) give the applicant a warning, together with a copy of the report, if the employer plans to reject the applicant because of the report, and 3) give the applicant an “adverse action notice” if the employer uses the report to deny the job-seeker’s application.

The lawsuit alleged that Dollar General did not follow these procedures in denying employment to several thousand job applicants. Under the terms of the deal, people who applied for jobs at Dollar General but were turned away based on their credit report will receive a small monetary settlement.

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The New Jersey Division on Civil Rights has announced that it has successfully resolved a sexual harassment case brought by a female employee of a South Jersey kennel facility. The employee complained to the DCR that her boss, the owner of Golden Grange kennel, engaged in inappropriate sexual comments, sexual innuendo and sexual overtures during the course of her employment. For example, he allegedly made comments about a coworker’s breast size and discussed vulgar terms in the workplace. According to the complainant, the conduct escalated when the owner asked her to “sleep over” and told her that he could “make her feel like a woman.” When the employee rebuffed his advances, the boss called her a “tease” and a “prude.”

The DCR was able to get this employee $20,000 in settlement of her claims. On first blush, this does not seem like a lot of money. But, to be fair, there may have been other factors leading to the relatively small settlement amount. In general, however, I encourage people who have potential discrimination claims to speak to a competent employment attorney before filing their complaints with the Division on Civil Rights. Practitioners like the attorneys of Siegler & Traub can help you maximize the value of your case.

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Inspired by the Bridgegate scandal, New Jersey legislators have introduced an amendment to New Jersey’s whistleblower statute which would extend whistleblower protections to employees who disclose “any waste of public funds or incidents of governmental abuse or mismanagement.” The bill’s sponsor, Sen. Loretta Weinberg, noted that the atmosphere of intimidation at the Port Authority kept many potential whistleblowers from exposing the four day lane tie-up at the George Washington Bridge last year. Said Sen. Weinberg: “We need to encourage public employees who suspect or witness government abuse or waste to come forward. Extending whistleblower protections will provide state and local workers with the rights they need to safely report government corruption and wrongdoing without fear of retaliation.”

The bill would extend current statutory whistleblower protections to employees who disclose waste of public funds or incidents of governmental abuse or mismanagement. Under the present law, such incidents may not rise to the level of illegality needed to trigger whistleblower protection.

Kudos to our legislature for attempting to extend the rights of whistleblowers in our state. Whistleblowers take huge risks with their careers when they come forward with legitimate complaints about corporate wrongdoing. The state government should be held to the same standards as private industry.

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In a recent unpublished Appellate Division case, Kimera v. Wanaque Convalescent Center, A-5119-T4 (N.J. App. Div. Sep. 19, 2014), the court upheld a grant of summary judgment in favor of the employer in a whistleblower retaliation case. The plaintiffs, who worked as nurses in a health care facility, claimed that they were fired in retaliation for complaining about events which led to the demise of a patient.

The facts of the case, as recounted by the court, indicated that the nurses raised some concerns regarding the circumstances surrounding the unfortunate event to their supervisors. They were fired several months later. During the litigation, the employer introduced evidence that the nurses were fired for disciplinary reasons, and not for their whistleblowing.

The court upheld the dismissal of the case, reasoning that the nurses had not established that they were whistleblowers within the meaning of the law. The law, as interpreted by recent case law, requires a plaintiff to identify which law, rule, regulation, public policy, or code of ethics was violated by the health care employer. These plaintiffs did not meet this burden. Moreover, the plaintiffs could not overcome the employer’s evidence of their poor job performance, which is a legitimate reason for termination.

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In a decision published today, Dunkley v. S. Coraluzzo Petroleum Transporters, A-3252-12T1 (N.J. App. Div. September 16, 2014), the Appellate Division found that a co-worker’s racial harassment of a fellow employee did not constitute a violation of the Law Against Discrimination.

The employee had alleged that his coworker, who had been providing on-the-job training to him, had made several racial remarks to him during his training, including references to the Ku Klux Klan and “black thugs.” The employee reported his concerns to management, who reassigned him to another co-worker for training. The employee alleged that he experienced retaliation after he made his complaint, including ostracism from other employees, which eventually led him to resign.

The court examined whether there was enough evidence for the employee to prove that the harassing co-worker was, in fact, his supervisor. Supervisor harassment is treated more seriously than co-worker harassment under the law. The court decided that, under the facts of this case, it was “debatable” whether the harassing employee was a supervisor or not. The court went on to consider, however, whether the employer had effective policies in place to deal with workplace discrimination and, if so, whether the employee followed them. The court found that the employer did have such policies, and that the employee failed to follow them. Therefore, the court found that the employer could not be held legally responsible for the actions of its racially insensitive employee.