Articles Posted in Discrimination and Harassment

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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.

This case highlights the pitfalls awaiting companies who use consumer credit reports to make hiring decisions. In our view, consumer credit reports seem to have little relevance to a employee’s skills, qualifications or potential for success. There are many outstanding job candidates who may have poor credit for any number of reasons. Companies who use routinely use credit reports to screen job applicants must do so responsibly and within the bounds of the law.

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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.

The moral of this story is that whistleblowers should seek legal counsel and guidance very early into the process . . . even before they blow the whistle. In the absence of this advice, whistleblowers and potential whistleblowers risk losing not only their careers, but their legal claims as well.

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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.

This case is a cautionary tale for all employees who suffer discrimination at work. If your employer has anti-discrimination policies in place, you need to follow them to the best of your ability. This often means making a complaint of discrimination to your management. You need to be careful about how you make your complaint, however, since it may backfire. This is the time to start talking to an employment lawyer. With the proper legal advice and guidance, you can make your complaint without losing your job and/or hurting your chances of winning a discrimination lawsuit.

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The New Jersey Opportunity to Compete Act implements several new requirements governing criminal background checks by prospective employers for job applicants. The law, which will take effect next March, prohibits employers with 15 or more employees from asking about a job applicant’s criminal record until after initial job interview. Employers will no longer be able to ask job seekers whether they have been convicted of a crime on a job application or at the first interview. They will only be able to do so legally after the initial interview. The law also prohibits employers from refusing to hire applicants based upon criminal records that have been expunged. The law does not apply to job positions which involve public safety and trust, such as law enforcement, the judiciary, or homeland security.

The law’s sponsor, Sen. Sandra Cunningham, D-Jersey City, said it will “give people – even who were never incarcerated but who’ve had an issue with the justice system at some point or another – an opportunity for a better job.” Employers in NJ should review their hiring practices with a competent employment attorney and implement changes, if necessary, in advance of March 2015.

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In a recent unpublished Appellate Division decision, Smith v. Millville Rescue Squad, A-1717-12T3 (unpublished) (N.J.App.Div. June 27, 2014), the Court held that an employee who is going through a divorce is protected by anti-discrimination law.

Mr. Smith and his wife worked together for the Millville Rescue Squad. The couple separated after the wife learned that Mr. Smith had been having an extra-marital affair. Mr. Smith discussed his marital relationship with his supervisor, who said he “can’t promise this won’t affect [Mr. Smith's] job. The squad terminated Mr. Smith six weeks later, citing the “ugly divorce.” Mr. Smith then filed his lawsuit alleging that his employer fired him because of his marital status. His case was dismissed at trial, in part because the trial court concluded that employers have the right to fire employees if they are concerned about the likelihood of an ugly or messy divorce.

The Appellate Division reversed this decision, saying that the trial court’s ruling was based on stereotypes about divorcing spouses, including the assumption that they “are antagonistic, uncooperative with each other, and incapable of being civil or professional in each other’s company in the workplace.” Mr. Smith had not acted uncivilly or unprofessionally towards his
ex-spouse, so such assumptions about him were wrong.

This case illustrates how working with one’s spouse or paramour can be quite a complicated affair (no pun intended). Employers need to have clear policies regarding romantic relationships in the workplace and take care not to take sides when these relationships go wrong.

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Both houses of the New Jersey State Legislature have passed a bill making it unlawful for New Jersey employers to discriminate against the unemployed. The bill prohibits employers from making decisions regarding hiring or terms and conditions of employment based on whether an applicant is unemployed. Employers are still permitted to inquire into an applicant’s prior employment, including the reasons for separation from a former employer. However, employers cannot, in a blanket way, decide to hire only candidates who are currently employed.

In terms of penalties, the bill provides for fines assessed by the New Jersey Department of Labor and Workforce Development. Employers who violate the law may be fined up to $1,000 for the first offense, $5,000 for the second offense, and $10,000 for each subsequent offense.

There is no private cause of action in this law, meaning that private citizens cannot bring lawsuits if they believe the law has been violated. Rather, they would file a complaint with the NJ Department of Labor and Workforce Development. A full text of the bill is available online.

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According to employment practices liability insurer Hiscox, California, Illinois, Alabama, Mississippi, and the District of Columbia are the top five riskiest places in the country for employee lawsuits. Employers in these states face a larger than average chance of being sued for employment law violations.

Hiscox states that “[a]ccording to the study, on average, a U.S.-based business with at least 10 employees has a 12.5 percent chance of having an employment liability charge filed against it.” Businesses with over 100 employees can expect to defend an employment related claim at least once every three years. Lower risk states for employment litigation include West Virginia, Massachusetts, Michigan, Kentucky and Washington.

The statistics used for this study included only federally-filed claims and discrimination charges brought before the Equal Employment Opportunity Commission. Data on state law claims, such as claims brought pursuant to New Jersey’s Law Against Discrimination, is not routinely collected. Suffice it to say that New Jersey employers, of any size, should have adequate personnel policies, training, and regular compliance audits to minimize the risk of being sued by an employee.