October 22, 2014

Should Poor Credit be a Bar to Employment?

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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October 20, 2014

Kennel Owner Settles Sexual Harassment Case

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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October 13, 2014

NJ Legislators Consider "Bridgegate" Addition to Whistleblower Law

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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September 22, 2014

Whistleblowing Nurses Lose Appeal

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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September 16, 2014

Co-Worker Harassment Case Fails on Appeal

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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August 15, 2014

Criminal Background Checks on Job Applications Banned in NJ

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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July 28, 2014

Divorcing Employee Protected by Anti-Discrimination Law

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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June 25, 2014

Bill Prohibiting Discrimination Against the Unemployed Passes NJ Legislature

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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April 1, 2014

Top Five States for Employment Law Claims

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.

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March 4, 2014

Court Finds Facebook Post a Breach of Confidentiality Agreement


We frequently advise clients to be mindful of what they post on social media, particularly when they are involved in litigation with a current or former employer. Unfortunately, Mr. Patrick Snay learned this lesson the hard way, when his daughter’s Facebook status update cost him the $80,000 settlement he obtained in an age-discrimination lawsuit.

Mr. Snay, 69, a former headmaster at Gulliver Preparatory School in Miami, sued his former employer for age discrimination when the school did not renew his contract. The parties settled the matter and entered into a settlement agreement where Gulliver agreed to pay Mr. Snay $80,000. The agreement contained a standard confidentiality clause, requiring that Snay and the school keep the terms and existence of the agreement private.

However, Snay’s daughter, Dana, a college student in Boston, couldn’t resist bragging about the case on Facebook. “Mama and Papa Snay won the case against Gulliver,” she wrote. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Dana apparently had about 1,200 Facebook friends, many of whom are current and former Gulliver students, and news of the post made its way back to the school’s lawyers, who told the Snays they’d violated the deal. Mr. Snay won a Circuit Court ruling to enforce the deal, but a Third District Court of Appeal Judge just overturned that decision. “Snay violated the agreement by doing exactly what he had promised not to do,” the Judge wrote in her decision. “His daughter then did precisely what the confidentiality agreement was designed to prevent.”

Although Snay can appeal this decision to the Florida Supreme Court, the lesson here is quite simple: When involved in legal proceedings, don’t disclose anything on social media. It is not worth it.

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January 23, 2014

NJ Expands Job Protection For Pregnant Employees

We are pleased to report that, on January 21, 2014, Governor Christie signed into law an amendment to the New Jersey Law Against Discrimination (“NJLAD”) that adds pregnancy as a protected classification. The amendment, which became effective immediately, defines “pregnancy” as childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth.

Prior to this amendment, the NJLAD prohibited discrimination based on gender and disability but did not specifically include pregnancy as a protected class or require reasonable accommodation for pregnant employees if the pregnant employee’s condition did not qualify as a disability under federal or state law. New Jersey now joins several other states, including New York, in prohibiting discrimination against pregnant workers and requiring employers to provide pregnant employees with reasonable accommodations.

The amendment offers the following examples of reasonable accommodation that an employer may be required to provide to employees for “needs related to the pregnancy”:

• Bathroom breaks;
• Breaks for increased water intake;
• Periodic rest;
• Assistance with manual labor;
• Job restructuring or modified work schedules; and
• Temporary transfers to less strenuous or hazardous work.

The employer is obligated to provide accommodations when the employee, based on the advice of her physician, requests the accommodations, unless the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer. The Amendment does not increase an employee’s rights to paid or unpaid leave in connection with the pregnancy.

Employers with operations in New Jersey should update employee handbooks and policies covering reasonable accommodations and should train managers and human resources personnel on the effect of this new amendment.

Any pregnant employee who encounters resistance or retaliation from her employer for requesting an accommodation because of pregnancy should consult a reputable employment attorney.

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January 4, 2014

Anti-Bullying Laws May Soon Be the New Frontier in Employment Law

According to management attorney Harold Kurman, anti-bullying legislation will be coming to a workplace near you in the not so distant future. As it stands today, it is perfectly legal for employers, supervisors, and coworkers to engage in bullying, so long as the bullying is not based on a protected category such as age, race, gender, or disability. However, that may change as society collectively decides that bullying in the workplace is no longer acceptable.

Mr. Kurman points out several things that employers can do to be proactive about preventing bullying, including 1) developing a comprehensive anti-bullying policy, 2) instituting severe disciplinary consequences for provable bullying behavior, 3) creating an effective complaint process for victims of bullying, and 4) implementing anti-bullying training practices. Many companies have already instituted some or all of these practices. Ultimately, it makes good economic sense to attempt to eliminate bullying from the workplace, as a happier workforce will be more productive and more loyal.

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November 7, 2013

Law Protecting Pregnant Workers Advances in NJ Senate

A New Jersey Senate committee recently endorsed legislation that would give women who are pregnant or who have recently given birth the protection of the state’s Law Against Discrimination.

The bill, S-2995, requires employers to make reasonable accommodations, including extended leave, for pregnancy-related conditions and needs when requested by the woman on the advice of her doctor. A business is excused from making accommodations if they can demonstrate that such accommodations would lead to an undue hardship based on their cost or the size of the employer’s work force and its budget.

We have personally represented women who, while pregnant or having recently given birth, were put on unpaid leave or have been fired because of their condition. Legislation such as this could encourage employers to make adaptations, such as reducing heavy lifting for pregnant women or for new mothers, or providing greater access to water and places to sit.

The bill would overturn the state Supreme Court’s ruling in Gerety v. Atlantic City Hilton Casino, 184 N.J. 391 (2005), which held that Hilton did not violate the LAD by firing an employee who, due to a difficult pregnancy, took more time off than allowed by company leave policy. The court said pregnancy does not need to be treated differently from other medical conditions or illnesses under state and federal family-leave laws. Although Hilton’s leave policy was neutral on its face, it resulted in a disparate impact on women and clearly demonstrates the need for this legislation.

We will keep you posted on the progress of this important legislation.

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October 10, 2013

Interns Beware: Discrimination Laws Do Not Apply to You, Yet

A federal court in New York has ruled that an unpaid TV intern had no legal basis for filing a sexual harassment claim, even though she was allegedly groped by her boss. The court said that because the young woman was an unpaid intern, she did not qualify as an "employee" and therefore did not have the legal protections against sexual harassment that employees have.

New York and New Jersey politicians are quickly moving to address this hole in the law. This would be, in my opinion, a very uncontroversial addition to discrimination law. Anyone on the job, whether paid or unpaid, boss or intern, independent contractor or employee, should be able to work without getting groped, harassed, bullied, or mistreated because of who they are. We will keep you posted on developments in this area.

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July 19, 2013

Edison, NJ Business Accused of Racial Discrimination

A former employee of Muscle Maker Grill, a successful NJ restaurant chain, has accused the company of terminating her employment after she blew the whistle on allegedly racially biased hiring practices. Specifically, the lawsuit claims that her direct employer, one of the largest company franchisees, did not want to hire African-Americans. She claims that the franchisee fired her after she reported her concerns to the company's headquarters. Muscle Maker Grill has denied the allegations. The company has stated, in its defense, that it does not engage in discrimination and that the franchisee in question has an African-American business partner.

We will follow this interesting case and keep you posted on any developments.

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July 10, 2013

US Supreme Court Narrows Definition of "Supervisor" for Discrimination Claims

In the recent decision Vance v. Ball State, the United States Supreme Court has made it more difficult for workers to sue their employers for workplace discrimination. The Court’s 5-4 decision narrowed the definition of the term “supervisor" for purposes of discrimination law.

For the last fifteen years or so, employers have been liable for the conduct of their supervisory employees when the supervisors engage in specific, tangible acts of discrimination. During this time, there has been a lot of litigation over the proper definition of the term "supervisor." Some courts have employed a broader definition, some a narrower one.

The EEOC -- the federal agency charged with enforcing the anti-discrimination laws -- has published guidance which adopts a broader definition. According to the agency, supervisors are employees who exercise "significant direction over another's daily work."

This definition is now out the window. According to the Vance case, the law of the land is now that "supervisors" are only those management-level employees who “are empowered” to take “tangible employment actions” against lower-level employees, “such as” having the authority to hire and fire.

The conservative majority of the Supreme Court handed a victory to employers in this case. It will now be much harder for victims of discrimination in the workplace to hold their employers accountable for actions of supervisory employees. The purpose of these anti-discrimination laws, i.e., to end discrimination in employment, has been undermined.

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May 2, 2013

Credit History Discrimination

There is a bill before the New York City Council that, if passed into law, would prohibit employers from using credit histories in hiring except in the very few cases where credit checks are required by law. This bill would be the strongest such law in the country.

Many employers used credit checks to screen job applicants, even though research has shown that people with damaged credit are not automatically poor job risks. Moreover, the credit agencies that compile and sell records on about 200 million American make mistakes and these erroneous reports could shut people out of the job market.

The New York City Council had a hearing on this issue recently in which a 30 year military veteran who had been deployed in Iraq testified that he had been turned down for a job as an airport passenger screener with the Transportation Security Administration because of a mistake on his credit report. By the time he got the mistake resolved, he said, the job had been filled. One might ask, even if this gentleman’s credit report was correct, how does an inferior credit rating disqualify him from screening passengers? By using credit histories, employers have created a disadvantaged class that could be permanently locked out of the economy.

New Jersey has a similarly minded bill pending in its legislature. This bill prohibits an employer from requiring a credit check on a current or prospective employee as a condition of employment, unless the employer is required to do so by law, or is a bona fide occupation requirement of a particular position. It also prohibits retaliation against an employee or prospective employee who asserts his or her rights under the bill.

If you believe you have been the victim of credit history discrimination consult a reputable employment law attorney to determine your rights.

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April 30, 2013

Bill Introduced to Address Workplace Discrimination Against LGBT Employees

Sen. Jeff Merkley (D) of Oregon has introduced legislation to prohibit discrimination in the workplace against LGBT Americans. The "Employment Non- Discrimination Act" would prohibit intentional employment discrimination against LGBT workers by employers, employment agencies and labor unions. Similar legislation is being introduced in the House.

Here in NJ, and in many other states as well, state law already prohibits discrimination on the basis of sexual orientation. However, these protections have never been implemented at a federal level for the LGBT community.

According to Bloomberg, "[i]n the last Congress, 43 senators co-sponsored legislation to end LGBT employment discrimination. The law would hardly be a burden. The overwhelming majority of Fortune 500 companies already subscribe to its guidelines. So do many municipalities. Private clubs, religious organizations and businesses with fewer than 15 employees would be exempt."

We heartily agree that the same protections afforded racial minorities, the disabled, the aged, and other classes of employees should be extended to LGBT workers. There is no doubt that workplace discrimination on the basis of sexual orientation or identity takes place. Federal acknowledgment of this problem would be an important milestone in civil rights history.

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April 10, 2013

State Theatre Sued for Sexual Harassment

A former employee of the State Theatre has filed a discrimination and sexual harassment lawsuit, according to the Home News Tribune. News reports state that Tracy Bell of South Brunswick is claiming she was fired earlier this year after she complained about theatre President and CEO Mark W. Jones and the theatre’s policies about medical appointments.

Bell, who was employed as an executive assistant to Jones, is accusing the State Theatre of sexual harassment, gender discrimination, breach of contract, invasion of privacy and retaliation, according to the report. Jones and the theatre deny all of the allegations.

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January 22, 2013

Ashley Furniture Sued for Anti-Lesbian Bias

A former salesperson for Ashley Furniture is claiming that her employer fired her after discovering she is a lesbian. The plaintiff, Isabel Perez, claims that her employer fired her last year after a Human Resources director found a decal from the Human Rights Campaign on her car. The HRC is an organization which promotes equal rights for the lesbian, gay, bisexual and transgender community.

According to Ms. Perez's complaint, the HR director questioned her about the bumper sticker and then made a comment that she may not fit in with the culture of the company. The HR director then said, in essence, she would "pray" about the issue and then make a decision. The store fired Ms. Perez the next day.

If you are disciplined, suspended, demoted, fired or otherwise treated differently because of who you are as a person, rather than what you have done as an employee, you may have rights under state and federal employment laws. It is unlawful to discriminate against employees because they were born a certain color, a certain ethnicity, or a certain sexual orientation.

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January 4, 2013

Law Professor Sued for Defamation over Law Review Article

New Jersey banker and local politician Robert Catalanello recently filed a lawsuit against Zachary Kramer, an associate dean at Arizona State University Sandra Day O'Connor School of Law. Mr. Kramer wrote a law review article which discussed an earlier lawsuit brought by a fired employee who alleged that Catalanello committed acts of discrimination on the basis of vegetarianism and perceived homosexuality.

Catalanello claims that the Kramer article, which analyzes the lawsuit brought against him by the former employee, contains false and defamatory statements which have exposed him to "contempt, hatred and ridicule" and have injured his reputation. Catalanello also claims that Mr. Kramer injured him further by making defamatory statements to students and the public at a lecture. Catalanello is a manager in the foreign exchange division of French investment bank Crédit Agricole and serves on the council of the Borough of Madison, N.J.

Admittedly not having read either the original complaint of the fired employee, or the law review article in question, it nonetheless appears to me that it is going to be extremely difficult for Catalanello to prevail on these claims. Reporting in the media the substance of a lawsuit, even if the lawsuit is itself baseless and false, does not, in my view, constitute defamation under normal circumstances.

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November 25, 2012

Federal Judge Requires Plaintiffs to Turn Over Facebook Passwords

In a recent case from the U.S. District Court for the District of Colorado, a judge has taken the unusual step of requiring the plaintiffs in an employment discrimination case to provide their passwords to Facebook and other social media accounts to their former employer. The employer argued that the information posted on these Facebook accounts was relevant to the plaintiffs' claims of emotional distress. One of the plaintiffs had posted on Facebook information about her emotional state after losing a pet and ending a relationship. In granting the employer's motion to compel the production of this information, the court reasoned thus:

"As a general matter, I view this content logically as though each [plaintiff] had a file folder titled 'Everything About Me,' which they have voluntarily shared with others . . . . If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced. The fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation."

In our view, this is bad precedent. It will encourage employers here in New Jersey to make these same types of invasive requests of their former employees. Although the courts of New Jersey may decide this issue differently for now, we have made it a practice to counsel our clients to avoid using Facebook and social media if they have employment cases in litigation.

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November 21, 2012

The Price is Wrong for Pregnant Model

The venerable TV show "The Price is Right" was whacked with a $777,000 jury verdict recently for discriminating against one of its models, Brandi Cochran. The show's producers refused to allow Ms. Cochran to return to work after her maternity leave. She alleged pregnancy discrimination in a lawsuit in California. The producers denied liability and promised a swift appeal.

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June 15, 2012

Senate Fails to Pass Paycheck Fairness Act

The Equal Pay Act (EPA) of 1963 prohibits an employer from discriminating on the basis of sex by paying employees of one sex less than it pays to employees of the another sex for equal work on jobs which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Signed almost 50 years ago, the EPA has enabled women to take steps forward in the job market. However, there still exists a noticeable gender gap between men and women with respect to pay. For example, women earn only 77 cents for every dollar earned by men. This gap crosses over all types of professions including higher paid occupations such as lawyers and doctors.

Nearly half of American workplaces either discourage employees from discussing their pay practices or outright prohibit it. This places many employees who believe they are being discriminated against in a bind. If employees report or bring up their concerns about pay inequality to management, they risk putting their job in jeopardy. It is counter-productive to social change to punish employees who ask questions regarding possible discriminatory practices.

President Obama made an attempt to counter such practices by supporting the Paycheck Fairness Act. This Act would expand the scope of the EPA and allow employees to disclose their salaries in the workplace and prohibit employers from retaliating against employees who raise wage issues. Allowing employees access to this information would require more employers to justify the pay inequality and show that the differences in pay were due to factors other than gender. Unfortunately, while the Act had great bipartisan support in the House of Representatives, it was blocked by Republicans in the Senate. After the Senate vote, the Senate Majority Leader, Harry Reid, utilized a procedural tactic which would enable the bill to be brought up again at another time. Hopefully, the next attempt to pass the bill will be a successful one.

If you are at a company which has a policy against discussing pay practices, and you believe you are being discriminated against based on your gender and are being paid unequally, there are other options to consider. If you fear retaliation by your employer, you can consult an employment law attorney to advise you on how to protect yourself through the process. You can also contact the Equal Employment Opportunity Commission, who can start an investigation on the matter.

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June 4, 2012

Whistleblower Rights Trump Discretion of the Court

The Appellate Division of the New Jersey Superior Court, in Zehl v. Elizabeth Board of Education, et al., recently overturned a lower court’s appointment of a discovery master in a case involving whistleblower rights, on the principle that requiring the plaintiff to pay for an expensive litigation process would undermine equal access to the courts and deter litigants from pursuing these types of claims.

This case involved Catherine Zehl, who worked as a cook for the Elizabeth School District. While on the job, she reported a teacher’s misconduct to the school. Ms. Zehl claimed her employer retaliated against her for speaking up by placing her to work in another school. While at the other school, Ms. Zehl complained about mice, gnats, cockroaches, and feces in the kitchen and stock room. She alleged she was retaliated against again when the school board eventually informed her that they were not renewing her contract.

Ms. Zehl subsequently filed a lawsuit against the school board under the Conscientious Employment Protection Act (CEPA), alleging that she faced illegal retaliation. The lawsuit resulted in voluminous and repeated motions being filed by both parties during the discovery stage. Ultimately, the trial judge appointed a discovery master to address and resolve the parties' discovery-related disputes and motions. The discovery master was appointed at the rate of $450 per hour, to be divided between the parties. The judge stated that a discovery master was warranted due to the “rancous and contentious nature” of the litigation. Ms. Zehl objected to using a discovery master arguing that there were no extraordinary circumstances warranting the appointment.

In reaching its decision to overturn the appointment of the discovery master, the Appellate Division reconciled two important policy objectives. First, the Court analyzed the continuing need for tools and procedures to ensure that litigation is conducted in an orderly and efficient manner. Second, the Court analyzed the safeguarding of judicial access for litigants prosecuting remedial actions pursuant to CEPA. The Court concluded that public policy evinced in remedial litigation, such as those brought under CEPA, must be at the forefront of any decision involving the appointment of a discovery master. The Court found that public policy would be thwarted if litigants bringing these lawsuits had to face significant costs. The Court stated that significant costs can deter litigants, who often have limited resources, from pursuing CEPA claims.

We believe that the Appellate Division made the right call. Employees who have faced retaliation for exposing misconduct should not have to face an additional burden of paying for an expensive discovery master. This decision is significant as the Court clearly understood the important policy objectives of CEPA and acted to ensure that the path to prosecuting these types of claims remains easily navigable.

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June 1, 2012

Former Police Detective Receives Nearly 1 Million in Settlement

Former Jackson Police Officer, Detective Howard Bogan, recently received a settlement of nearly 1 million dollars from Jackson Township. Bogan’s complaint in the Superior Court of New Jersey alleged that after he was called to testify against two officers charged with perjury in connection to a narcotics case, other officers in the police department began to harass him. Bogan states that the other officers repeatedly called him a “rat,” “snitch,” and “untrustworthy.” One instance of harassment referenced in the complaint included Bogan coming into work one day and finding a toy mouse which represented a “rat.” Bogan claimed that due to the unlawful, illegal, and unethical conduct of his fellow officers, he suffered mental stress including panic attacks, anxiety attacks, and post-traumatic stress disorder. The harassment started in November 2007 and by August 2008, Bogan stated that he could no longer take the harassment and go into work. Bogan remained out of work from August 2008 to September 2009.

Bogan’s complaint resulted in Jackson Township signing a settlement in the amount of $950,000. It is reported that Jackson had to borrow $500,000 from the Ocean County Municipal Joint Fund in order to obtain payment for Bogan.

Jackson’s Mayor, Michael Reina, comments that hopefully this is a lesson learned for Jackson and other towns, and harassment and bullying is not something any township would condone.

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May 19, 2012

Choose Your Forum Wisely

The Appellate Division of the New Jersey Supreme Court recently affirmed a dismissal of a plaintiff’s complaint based on the Conscientious Employment Protection Act (CEPA). The plaintiff, David Schmidt, alleged retaliation after he blew the whistle against his employer, Celgene Corporation, and CVS/Caremark Corporation, one of Celgene’s distributors. The primary reason why the Appellate Division affirmed the dismissal of the complaint was based on the fact that Mr. Schmidt first filed his lawsuit in Texas, and when he received an unfavorable ruling on the choice of law, he then filed in New Jersey. Mr. Schmidt’s actions appeared to look like “forum shopping,” a practice the courts strongly frown upon. Further, filing the CEPA claim in Texas first made Mr. Schmidt miss the one year filing deadline in New Jersey.

It is unusual that Mr. Schmidt filed his CEPA claim in Texas before considering New Jersey as New Jersey law provides stronger CEPA protections for employees. When there is more than one acceptable venue for a claim, it is important to keep in mind strategy and evaluate which jurisdiction your claim is more likely to prevail in.

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May 4, 2012

Do I Really Need an Employment Lawyer?

Some employees do a little Googling and think they are qualified to extract big settlements or severance packages from their employers without hiring an employment lawyer. Can it be done? Honestly, no, not really. Should it be attempted? Absolutely not. An employment lawyer is a specialist in handling employment law matters, just as a cardiac surgeon is a specialist in performing heart surgery. You wouldn't perform heart surgery on yourself, would you?

This point is driven home by a recent decision of the Appellate Division of the New Jersey Superior Court. On May 1, 2012, the Appellate Division affirmed a lower court decision concluding that the plaintiff-employee failed to state a cognizable claim under the New Jersey Law Against Discrimination (LAD) and the Conscientious Employment Protection Act (CEPA), and had not established a cause of action for either LAD or CEPA. The employee represented himself in the case. The appellate court agreed with the trial court's decision that the employee had not stated his claims correctly, nor provided enough evidence to sustain them.

If you believe you have a valid claim against your employer, seek the guidance and counsel of a lawyer who specializes in employment law matters. The employee mentioned above made simple mistakes which caused him to lose his case. Hiring an employment lawyer, while not guaranteeing him victory, would have at least given him a fighting chance.

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May 1, 2012

EEOC Issues Guidance on Age Discrimination Defense

The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age and applies to employees and job applicants who are 40 years of age and older. One of the grounds for liability under the ADEA is called a "disparate impact" claim. This is where an employee demonstrates that a seemingly neutral decision by an employer has a disparate impact on older employees. As a defense to this type of claim, employers are permitted to argue that the differential treatment was due to reasonable factors other than age.

The Equal Employment Opportunity Commission (EEOC) recently issued new regulations which clarify the “reasonable factors other than age” defense under the ADEA. The new regulations, which go into effect today, provide employers with guidance on ensuring that their employment practices are in fact for reasons other than age. For example, the new regulations urge employers to take into consideration the following non-exhaustive list:
• The extent to which the factor is related to an employer’s stated business purpose;
• The extent to which an employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
• The extent to which the employer limited a supervisor’s discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
• The extent to which the employer assessed the adverse impact of its employment practice on older workers;
• The degree of harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm in light of the burden of undertaking such steps.

The above considerations provide guidance on what an employer must demonstrate to successfully utilize the “reasonable factors other than age” defense. The new rule prevents employers from routinely and mechanically utilizing the “reasonable factors other than age” defense in every decision it makes which disparately impact older employees. Instead, the new rule encourages employers to take into consideration whether their decision to implement a particular policy was truly due to factors other than age, and the possible harm the policy may have on older employees. We believe the EEOC’s clarification on the defense is one that keeps in mind the rights of older employees and the susceptibility to discrimination they frequently face at work.

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April 24, 2012

NJ Court Expands Definition of Discrimination

The Appellate Division of the New Jersey Superior Court recently expanded the scope of employees protected from employment discrimination. The Court ruled that anti-discrimination protection extends to employees who are perceived to be, but aren't, members of a protected class. For example, if your employer thinks you are Jewish, but you aren't, you are still protected from anti-Semitism at work.

The case was brought by Myron Cowher, a truck driver for Carson & Roberts Site Construction & Engineering. Mr. Cowher claims that his supervisors subjected him to anti-Semitic remarks on a daily basis. While Mr. Cowher is not Jewish, either by ethnicity or by faith, he felt that these remarks caused a hostile work environment.

The primary issue analyzed by the Appellate Division was whether an individual may bring a suit against an employer for discrimination based on a perceived membership in a protected class. The Court noted that, in the area of disability discrimination, an employee is protected if her employer believes she is disabled, even when she is not. This is the concept of "perceived disability discrimination." Other states and the federal courts have recognized this concept as well. The Appellate Division reasoned that there is no basis to grant protection to individuals who are perceived to be disabled, but not to employees who are perceived to be members of other protected categories.

The purpose of anti-discrimination law is to eradicate discrimination, wherever it lurks. Whether you are actually a member of a protected group or whether your employer just thinks you are -- you still have the right to work in an environment free of discrimination. The Court's expansion of the definition of discrimination makes perfect sense.

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February 1, 2012

Supervisors May Be Sued Under The FMLA

On January 31, 2012, the U.S. Court of Appeals for the Third Circuit outlined factors to be used when determining whether a supervisor at a public agency can be subject to individual liability under the Family Medical Leave Act (FMLA).

The Family Medical Leave Act allows employees to take unpaid and job protected leave for up to 12 weeks per year. This Act allows employees to balance work and family responsibilities by entitling them to take leave for certain medical or family reasons. FMLA applies to all public agencies and companies with 50 or more employees. To be eligible under the FMLA, an employee must have worked for the employer at least 12 months. An employee may use the FMLA for the following reasons:

• Give birth or care for a newborn
• During placement of a child for adoption or foster care
• To care for an immediate family member with a serious health condition
• To take medical leave when the employee is unable to work due to a serious health condition

Debra Haybarger, a former employee of Lawrence County Adult Probation and Parole sued her former supervisor under the FMLA after she was terminated from her position as office manager. Ms. Haybarger, who suffered from type two diabetes, heart disease, and kidney problems, received poor performance reviews from her supervisor which included comments stating that Haybarger needed to improve her overall health and cut down on sick days. Haybarger was eventually fired by the President Judge of the Lawrence County Court of Common Pleas after Haybarger’s supervisor advised the Judge that termination was necessary.

Haybarger sued the County of Lawrence, Lawrence County Probation, and her supervisor under the FMLA (along with the Americans with Disabilities Act, Pennsylvania Human Relations Act, and the Rehabilitation Act). The District Court held that Haybarger’s supervisor could not be seen as an “employer” under FMLA since the supervisor did not have “sufficient control over the conditions and terms of employment” and that an employer has sufficient control over an employee if they have authority to fire them.

The Court of Appeals disagreed and ruled that although a supervisor may not have ultimate authority over employment practices, they are not relieved from liability. The Court reasoned that the totality of circumstances must be examined when determining whether an individual supervisor can constitute an “employer.” In Haybarger’s case, while the Court concluded that even if the supervisor did not have final authority to fire Haybarger, the supervisor acted in the interest of the county, carried out his role as a supervisor, exercised control over her work, had authority to discipline her, and recommended to the Judge that she be terminated. These factors were enough for the Court of Appeals to conclude that the supervisor is considered an “employer” and could be held individually liable under the FMLA.

This decision is notable in the employment law context as it expands the circumstances in which supervisors can be held liable for violating employee rights. Supervisors and managers should be aware that just because they may not have direct authority over an employee, they are not shielded from liability when they take actions against employees which are contrary to federal laws such as the FMLA.

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January 26, 2012

Good News for Employment Lawyers and Their Clients

The New Jersey Supreme Court recently issued a unanimous decision confirming that a court’s application of contingency enhancements in awarding attorney fees is not only appropriate, but essential in cases where the relief sought is equitable in nature. The Court’s decision, which combined two different appeals, comes as a victory to many lawyers who take cases on a contingency basis, including employment lawyers.

Traditionally, each party in a suit is responsible for their own fees, unless there is an applicable statute that warrants "fee-shifting." A contingency enhancement is a mechanism which allows the Court to increase the fee to take into account the risk of nonpayment when an attorney’s compensation is substantially contingent on a winning outcome. The Court relied primarily upon Rendine v. Pantzer, an employment discrimination case, in reaching its decision. The Rendine Court spelled out three important policy purposes for fee-shifting, which include:

1. Allowing litigants equal access to the courts.
2. Provide these individuals with the resources to enforce protected rights in court.
3. Providing these litigants with adequate representation.

By way of background, the first case on appeal, Walker v. Guiffre, involved a woman who sued multiple car dealerships in New Jersey under the Consumer Fraud Act. During the case, her attorneys pursued extensive discovery and expended a lot of time and effort which resulted in the accumulation of high attorney fees. After winning the trial, Walker’s attorneys requested counsel fees and a contingency enhancement, which the trial court allowed. The Appellate Division overturned the trial court’s award of attorney fees for numerous reasons, including that counsel did not justify the hours utilized, there was little analysis of the reasonableness of the hourly rate charged, there was no justification of the 45% contingency enhancement.

The second case, Humphries v. Powder Mill Shopping Plaza, involved a complaint about the lack of handicap accessibility at a shopping center. The case ultimately settled on most issues and the issue of attorney fees and costs was submitted to the Court to resolve. The trial court concluded that the time expended on the matter was reasonable, especially as the rate charged in the amount of $350 an hour was low for this type of case. The Court applied a 20% contingency enhancement on the award of counsel fees. On appeal, the Appellate Division concluded that Humphries failed to meet a more stringent U.S. Supreme Court standard for justifying a contingency enhancement.

On January 25, 2012, the New Jersey Supreme Court reinstated the contingency enhancements in both cases. The Court emphasized the Humphries case, where the relief sought by the Plaintiff was about more than money, it was about effecting a change which would benefit all handicapped individuals who would have been denied access to the shopping area in the future.

In the field of employment law, fighting for employee rights is not just about obtaining monetary compensation. It has a broader purpose of ensuring that protected classes of people are not discriminated against. The Court's recent decision affirms that lawyers who do this work on a contingency fee basis deserve enhanced fees to buffer the risk they take by accepting these cases.

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January 13, 2012

NJ Appellate Court Limits Scope of Whistleblower Claims

The Appellate Division of the Superior Court of New Jersey recently ruled that an employee who blows the whistle on illegal or unethical employer conduct does not qualify as a "whistleblower" if her part of her job duties is to monitor such conduct.

The case, White v. Starbucks Corp, et. al., involved a former Starbucks District Manager, Kari White, who started working for Starbucks in 2006. White claimed she was fired for whistleblowing about various workplace activities that violated the law and company policy. Some of these activities include reporting missing store merchandise, unsanitary conditions at the Newark branch, alcohol consumption by employees while on the job, after-hours sex parties, employees emailing pornographic images, and complaining about the Westfield branch’s tables and chairs not leaving enough space for a wheelchair. White alleged that Starbucks forced her to resign from her position in March 2007 after she complained about these activities. Starbucks argued that White was terminated due to her aggressive managerial style.

White sued Starbucks Corp. under CEPA, the law which prevents employers from taking retaliatory action against employees who report unethical workplace activities. CEPA serves two major public policy objectives: 1) protecting and encouraging employees to report illegal and unethical workplace activities and 2) discouraging public and private sector employees from engaging in such conduct.

The Court dismissed White’s CEPA claim by relying heavily on an earlier case which held that an employee may not bring a claim under CEPA if they are engaging in acts which are already a part of their job duties.

Here, White’s job duties as a District Manager required that she “regularly and customarily exercise discretion in managing the overall operation of the stores within her district including overseeing the district's store management workforce, making management staffing decisions, ensuring district-wide customer satisfaction and product quality, and managing safety and security within the district.” The Court stated that it was White’s job to communicate with her superiors about any violations occurring at the stores she oversaw, and ensure that these violations were addressed and corrected. Therefore, the Court concluded that CEPA is inapplicable in White’s case.

The New Jersey Supreme Court has been asked to review the Appellate Division’s decision. If the State Supreme Court is to further affirm the notion that employees cannot bring a CEPA claim if whistleblowing activities are already a part of their job duties, the policy implications can be far reaching and possibly even thwart the objectives of CEPA. Limiting the scope of CEPA as the Court has clearly done in White v. Starbucks Corp., et. al., does not serve as a deterrent against employers taking retaliatory action against employees trying to do the right thing in the workplace. Further, employers could strategically word job duties to include vague and broad language that would bar employees from later bringing a CEPA claim. We hope the NJ Supreme Court will overturn this decision and keep the policy objectives of CEPA intact.

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January 12, 2012

U.S. Supreme Court Narrows the Rights of Employees of Religious Institutions

The U.S. Supreme Court has issued a troubling decision which affirms the validity of a judicially-created exception to the nation’s employment discrimination laws. In upholding and expanding the so-called “ministerial exception,” the Court rendered an entire class of employees, i.e., ministers or other religious leaders, ineligible for protection from employment discrimination. Moreover, the Court broadly interpreted the term “minister” to include religious school teachers who are ordained in their faith but not working in the role of minister of a congregation.

The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, was brought by a former employee of the Evangelical Lutheran Church, Cheryl Perich, who alleged she was fired from her teaching position by the Church because she had pursued an employment discrimination action against it based on disability. The Church admitted that it terminated Ms. Perich in retaliation for her filing a charge of discrimination. However, it sought sanctuary under a judicially-created exception to employment discrimination laws called the “ministerial exception.” As Chief Justice Roberts explained, this exception is grounded in the First Amendment’s Free Exercise Clause. According to the Court’s reasoning, the Constitution's guarantee of freedom to exercise the religion of one’s choice confers on religious organizations the right to choose their leaders in any manner they want -- even in a discriminatory manner.

In arguing against the ministerial exception, Ms. Perich cited an earlier case where members of a church were denied unemployment benefits after it was discovered that they were fired for using peyote as part of a religious sacrament. In that case, the court determined that the Free Exercise Clause had not been violated because the right to exercise religion does not relieve an individual of his or her obligation to follow valid and neutral laws of general applicability. The Court in Ms. Perich’s case distinguished the earlier case by stating that smoking peyote implicated government regulation of an outward act while Ms. Perich’s case implicated an internal Church decision that affected the faith and mission of the Church itself.

This decision is troubling for many reasons. First, the “ministerial exception” may be interpreted even more broadly in the future, as this Court applied the exception to teachers like Ms. Perich, who only devoted a small part of her day to religious duties. Second, the Court fumbled in distinguishing what constitutes an "outward act" as opposed to an internal decision. A church’s decision to fire an employee for a discriminatory reason could easily be interpreted as implicating government regulation of an outward act, since acts of discrimination affect not only the individual affected but the public interest as well. Likewise, an employee smoking peyote for sacramental purposes can be interpreted as an internal personal decision and a matter of personal faith.

Ultimately, this decision narrows the rights of a large class of employees who work for religious institutions. Employees who want to advance within a religious school or church and obtain status as a “leader” or “minister” now do so at their own peril. They may be discriminated against without any legal repercussion whatsoever, as their employer can simply claim that the decision to harass, demote, or terminate the employee was an “internal church decision” protected by the First Amendment.

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December 20, 2011

Hotel Employee Wins Substantial Discrimination Verdict

A jury, sitting in Federal District Court in the Southern District of New York, awarded Freddrick MacMillan, an African-American employee who worked for Millennium Broadway Hotel in Manhattan, $1,000,000 in punitive damages and $125,000 in compensatory damages in a discrimination law suit. Mr. MacMillan, who has been an employee of Millennium for over two decades, sued the hotel in Federal District Court alleging that he was forced to work in a racially hostile work environment.
Mr. MacMillan alleged in his lawsuit that he was the only African-American employee working in the hotel’s engineering department. He further alleged that other mechanics as well as supervisors frequently used inappropriate racial terms in his presence in order to upset and harass him. Mr. MacMillan claimed that co-workers referred to him as “boy” and one of them suspended a lynched voodoo doll hanging from a noose in a supervisor’s office. The doll remained on a bulletin board in the supervisor’s office until a union representative intervened. Millennium failed to discipline anyone in the investigation that followed.
Under federal law, Mr. MacMillan was required to demonstrate that his workplace was permeated with discriminatory intimidation, ridicule, or insult that was sufficiently severe or pervasive to alter the conditions of his employment, and create an abusive working environment.
The co-worker who displayed the voodoo doll and other co-workers who allegedly contributed to the hostile work environment have left the hotel since the law suit was filed. Mr. MacMillan has continued working as a mechanic for the engineering department at the Hotel.
The jury verdict in Mr. MacMillan’s favor and the subsequent award of compensatory and punitive damages comes as a caution to employers who fail to take proactive action in response to employee complaints regarding discriminatory harassment and hostile work environments. Not only is creating a hostile work environment in violation of federal law, but it can result in a significant monetary liability.

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November 4, 2011

Coffee Shop Owner Accused of Sexual Harassment

A Camden coffee shop owner was sued after six female employees alleged that he sexually harassed them in the workplace. The coffee shop, located in downtown Camden, is modestly called “City Coffee” but, interestingly, provides other services. City Coffee also brews up DNA testing and tax preparations, which the owner runs out of his office in the back of the store.
Former employees of City Coffee alleged that the owner lured or followed them into areas of the store that could not be seen in the store surveillance camera in order to make advances. The complaint further alleged that the owner created such an intolerable work environment that many female employees quit.

A settlement reached in the amount of $75,000 the night before trial is now being contested by the owner, who claims he never agreed to it and did not sign it. Recently, a Superior Court Judge ruled that the settlement is binding and enforceable, and the owner be required to comply. In addition to the $75,000, $15,000 of which will be distributed to the employees involved, the settlement also required that the coffee shop owner provide employee training on workplace discrimination and put in place store policies against workplace discrimination. The State Attorney General’s Office believes that the owner will be appealing the decision.

There are two important things to note from this story. The first is that although the owner argues that he never signed anything, agreements do not always have to be signed in order to be enforceable in New Jersey. Second, employers in New Jersey, no matter the size, must have anti-discrimination and anti-harassment policies and should provide training on these issues, for their own protection and for the protection of their employees.

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August 20, 2011

Performance Improvement Plans Examined by Appeals Court

The Third Circuit Court of Appeals recently ruled, in Reynolds v. Dep’t of Army, that merely placing an employee on a Performance Improvement Plan (frequently called “PIPs”), is not enough to constitute an “adverse employment action” under anti-discrimination laws. This pro-employer ruling requires employees in New Jersey to provide additional evidence in order to prove their discrimination case against their employer.

The plaintiff in this case was an employee of the United States Army who received a poor evaluation from his supervisor. He was subsequently placed on a PIP. Under the PIP, the employee was given 90 days to improve his performance or face the possibility of termination. A few years later, the employee, who was approximately 55 years old, filed a lawsuit against the Army alleging he was discriminated against based on his age and had faced retaliation. The Army tried to dismiss the lawsuit on the basis that the employee could not prove that he suffered an adverse employment action as a result of the alleged discrimination. The District Court agreed with the employer and determined that merely getting placed on a PIP, absent any other action taken against the employee, does not constitute an adverse employment action.

On appeal, the Third Circuit affirmed this ruling. The Court noted that, for policy reasons, allowing PIPs alone to show adverse employment action would result in “more naked claims of discrimination and greater frustration for employers seeking to improve employees’ performance.”

Proving an “adverse employment action” is crucial to a discrimination case. If there is no "harm," there can be no "foul." Frequently, employees rely on being placed on a PIP as evidence of an adverse employment action. However, in light of Reynolds, at least in federal court, an employee will also need to show that additional action was taken against them, such as changes to pay, benefits, or employment status.

However, employees should not be discouraged if they believe they do not have enough evidence to show they have faced adverse employment action due to being members of a protected class, such as age, gender, race, or sexual orientation. Our firm frequently encounters employees who receive PIPs, and an expert’s perspective can catch signs of other adverse employment actions as well. If you have received a PIP and believe you are being discriminated against due to membership in a protected class, you should consult with an employment law attorney. While Reynolds states that PIPs alone cannot show an adverse employment action, PIPs combined with other factors are still actionable.

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July 6, 2011

U.S. Supreme Court Allows Third-Party Retaliation Claims

In a refreshing change for this conservative United States Supreme Court, the justices gave broad application to Title VII’s anti-retaliation protections in its recent decision in Thompson v. North American Stainless, LP . The Court found that an employee may bring a claim for retaliation under the federal civil rights law when he or she suffers an adverse employment action because someone “closely related” to the employee engaged in protected activity, such as filing a charge of discrimination or opposing discrimination.

In this case, Eric Thompson and his fiancée, Miriam Regalado, were both employed by North American Stainless. Three weeks after receiving notice that Regalado had filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), the company fired Thompson for alleged performance-based problems. Thompson filed his own EEOC charge and later sued the company, claiming that he had been fired in retaliation for his fiancée’s EEOC charge. The lower federal courts held that the anti-retaliation provisions of Title VII did not protect Thompson because he did not personally engage in protected activity on his own behalf or on behalf of his fiancée.

The Supreme Court reversed the Sixth Circuits decision, finding that the anti-retaliation provisions of Title VII must be construed broadly to encompass any employer action that might dissuade a reasonable worker from making or supporting a charge of discrimination. Clearly, an employee might be discouraged from making a charge of discrimination if she knew that her fiancé would be fired!

The Court refused to identify a fixed class of relationships for which third-party reprisals are unlawful but it noted that firing a close family member will likely fall within Title VII’s anti–retaliatory protections but that “a milder reprisal on a mere acquaintance “ will not.

New Jersey employers and employees should take notice of this ruling because protection from retaliation is equally broad under the New Jersey Law Against Discrimination (NJLAD). Moreover, New Jersey courts generally look to Title VII for guidance in interpreting the NJLAD. An employee may have a cause of action for retaliation where he or she is closely associated with someone who has engaged in a protected activity and should consult a competent employment attorney for guidance.

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June 20, 2011

US Supreme Court Strikes Down Wal-Mart Class Action Lawsuit

The U.S. Supreme Court ruled in favor of Wal-Mart today in a massive class-action lawsuit brought by current and former female employees. The women claimed that Wal-Mart, the country's largest private employer, systematically discriminated against them on the basis of their gender by paying them less and promoting them less frequently than their male counterparts. As many as 1.5 million female employees would have been parties to the class action if it were allowed go forward.

The opinion, authored by Justice Antonin Scalia, found that the proposed class members lacked "commonality," i.e., that the 1.5 million potential plaintiffs each had different experiences at Wal-Mart that could not easily be tried in one case. Wal-Mart has approximately 3400 stores nationwide and thousands of male managers making personnel decisions. Justice Ruth Ginsburg filed a concurrence and dissent, taking issue with the majority's opinion regarding commonality. Justice Ginsburg opined that the plaintiffs showed enough commonality to deserve a remand back to the district court for further proceedings. She pointed to statistical evidence provided by the plaintiffs which showed discrimination towards women. For example, women fill 70% of the hourly jobs in the retailer’s stores but make up only 33% percent of management; the higher up in the organization, the lower the percentage of women; women working in the company’s stores are paid less than men in every region; and the salary gap widens over time even for men and women hired into the same jobs at the same time.

While employers will hail this decision as a victory, the celebration may be short-lived. 1.5 million women now have the right to file individual lawsuits against Wal-Mart all over the country. Alternatively, female employees can attempt to file class actions on a region-by-region or even store-by-store basis. Until Wal-Mart remedies what seems to be serious problems with its employment practices, it will continue to face legal action.

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June 16, 2011

Massive Sexual Harassment Verdict in Illinois

A jury rendered what may be the largest sexual harassment verdict in history last week in Illinois -- a $95,000,000 award to the plaintiff, Ashley Alford. The loser in the case was Aaron's Inc., a rent-to-own retailer. Ms. Alford alleged that her manager made suggestive comments, touched her inappropriately and sexually assaulted her. She reported this conduct to her supervisor. She even called the company's HR hotline to complain as well. The company took no action.

Matters reached a head (no pun intended) when the manager came up to her, removed his genitals from his pants and then hit her top of the head with his penis. A month later, he pushed her down onto a sofa, lifted up her shirt and masturbated on top of her. Criminal charges against the manager are pending.

Not surprisingly, the employer is appealing this record-setting verdict. Chad Strickland, the company's VP of human resources, said that "Aaron's is extremely disappointed with the jury's verdict and believes that the award does not accurately reflect the evidence that was presented in this case. We feel strongly that this verdict is the result of a decision made by a classic runaway jury, and because of that we are confident that the damages will be greatly reduced."

The facts of this case are extreme. No person should have to be subjected to this type of treatment at work, or anywhere else, for that matter. By not acting promptly to terminate this manager, who was obviously a sexual predator, Aaron's violated the law and now will be remembered in infamy as being on the losing end of a world record-setting verdict.

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May 5, 2011

Employer Fails to Remove Racist Graffiti from the Workplace

According to employees of an Illinois warehouse operated by Schenker Logistics, their company has not done enough to remove racist graffiti, including swastikas and the letters KKK, from the company's premises. The employees have now filed complaints with the Equal Employment Opportunity Commission. Said one employee, Angela McDonald, "I don't want to have go to work and see this person that's hateful." She previously complained to management about an employee that had a Confederate flag on his truck. The company has done nothing, she claims.

The lawyer for the employees said that "there is racist graffiti all over the break rooms and the washrooms and the company is doing nothing about it."

While a company cannot be expected to monitor its employees every moment while they are at work, employers have a responsibility to act promptly, decisively, and effectively when acts of harassment and discrimination occur. Not only should the company have removed the racist, hateful graffiti immediately, it should have instituted mandatory anti-harassment training for all its employees.

View more videos at: http://nbcchicago.com.

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April 26, 2011

Jersey City Sued for Sexual Harassment Again

The Jersey City Parking Authority and two of its employees are being sued again for sexual harassment, bringing the total number of cases involving the same employee-defendants to three. Earlier this year, former JCPA employee Nancy Lopez settled her sexual harassment claim against the Authority, its Director of Enforcement, Fernando Picariello, and Enforcement Officer Raymond Manzo. The new lawsuits, filed by Yolanda Miranda, a former JCPA employee, and Rosalie Laureano, a current employee, allege that they were sexually harassed and suffered retaliation in connection with the Lopez lawsuit.

Miranda claims in her lawsuit that Manzo touched her breasts and buttocks, and attempted to assault her in her home. Laureano alleges in her lawsuit that after she participated in an internal investigation into Picariello's conduct, he changed her schedule to deprive her of income and engaged in "physical and verbal coercion, threats and intimidation, and micro-managing." She also claims that Picariello and Manzo made references to her buttocks and suggested in her presence that they would like to have sex with her.

In my experience, when there is this much smoke, there is usually fire. It's exceedingly rare for an employee to accuse her supervisors of sexual harassment. In these cases, three separate women all accuse the same men of the same types of illegal behavior. I don't think any rational jury would find that the Authority acted properly in these cases.

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March 16, 2011

Indian Shipworkers Allege Company Lured them to U.S. Under False Pretenses

Last month, attorneys on behalf of a group of Indian workers asked for for class-action status in a federal lawsuit that describes the workers as victims of "human trafficking" and organized crime. According to the Houston Chronicle, a group of employers, immigration lawyers and labor recruiters based in India, New Orleans, Texas and Mississippi conspired to deceive and exploit workers in a multinational scam.

Skilled Indian shipbuilders were recruited to work in the U.S. with the promise of obtaining legal permanent residency -- green cards. However, when they arrived in the U.S., the shipbuilding company, Signal International, required them to live in pre-fab cabins at company-run "man camps" for which they were forced to pay "rent" of $1,050 a month. According to two of the workers, the man camps felt like "jail." Workers were allegedly subjected to routine searches (alcohol was prohibited), guests were turned away, and guards referred to them by number rather than by name.

In court documents, attorneys for Signal argued that the company was misled by labor recruiters and an immigration lawyer. Signal has allegedly demanded refunds and severed ties with one consulting firm after learning of recruiters' false promises and inflated visa charges. Other parties in the federal lawsuit — an Indian recruiter, a New Orleans immigration lawyer and others — also denied or deflected blame for the situation.

Here in central New Jersey, we have a large community of hard-working men and women from India and other Asian countries. Unfortunately, there are companies both here and abroad who take advantage of them. If you are an immigrant who believes that your rights are being violated at work, please seek out the counsel of an employment attorney who has experience handling immigration-related employment disputes.

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March 5, 2011

Employment Discrimination: "Cat's Paw" Liability Upheld

In a significant employment discrimination decision, the U.S Supreme Court has just ruled that an Army Reservist who had a civilian job as a hospital technician could bring a lawsuit for employment bias and discrimination against him due to his commitment to the military.

In addition to being a positive result for the man who brought the lawsuit, this case is important because of the theory the court relied on to find that an employer may be liable for discrimination. Under what is called “cat’s paw” liability, the court determined that an employee may be able to hold an employer liable where the illegal bias of a supervisor who does not have the authority to make an ultimate employment decision – such as hiring or firing – serves as a “motivating factor” in the decision making process.

Here, an unbiased human resources manager fired the technician based on negative performance reviews. But, the technician relied on the “cat’s paw” theory to argue that his firing was discriminatory because the performance reviews were illegally biased. The technician claimed that his two immediate supervisors were anti-military and wrote negative comments about him in their reviews. Discrimination against those serving in the military is a violation of the Uniformed Service Employment and Reemployment Rights Act . The human resources manager then took these findings at face value, and fired the man.

The Supreme Court determined that even though the human resource manager may not be biased, the fact that her decision was tainted by improperly motivated comments was enough to bring a claim of discrimination against the hospital. Also, even if the human resource manager had conducted an independent investigation, where a discriminatory bias is an influence in a negative employment decision, an employer may be held liable for discrimination.

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November 30, 2010

Novartis $152.5 Million Sex-Bias Settlement Approved

A federal judge approved a mammoth $152.5 million settlement in a gender discrimination class action against one of New Jersey's largest employers, Novartis. The suit was filed in 2004 by Amy Velez and four other women who claimed they faced discrimination over pay and promotion decisions as well as for pregnancy. The case was certified as a class action on behalf of more than 5,600 women who worked in sales jobs at Novartis since July 15, 2002. On May 17, 2010, a jury found Novartis liable for discrimination and awarded $3.4 million in damages to 12 of the women and $250 million in punitive damages to a group of 5,600 employees.

In accordance with the settlement, Novartis will pay $60 million in back pay to the class and $40 million in compensatory damages. Additionally, Novartis has agreed to implement measures to protect female workers’ rights. More specifically, the drug maker has agreed to revise its sexual harassment policies and training, strengthen its employee complaint process, hire an outside specialist to help it identify gender pay disparities in the company, and revise its performance management process.

This firm has seen more gender and pregnancy discrimination cases since the economy began its downturn. If you have been unfairly denied a promotion or pay increase because of your gender, you may have a claim for unlawful discrimination. An attorney specializing in employment law can help you understand your rights.

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November 15, 2010

Senate Republicans Kill the Equal Pay Act Amendments

Senate Republicans voted against the Paycheck Fairness Act of 2010, killing the legislation which had been passed by the House of Representatives over two years ago. The bill, which would have updated and expanded the Equal Pay Act of 1963, had wide popular support, as well as the support of 58 Senate Democrats. The bill was two votes shy of a filibuster-proof majority.

President Obama, speaking about the bill, stated that he was "deeply disappointed" that "a minority of Senators" prevented the Act from being brought up for a debate and receiving a vote. Said the President: [a]s we emerge from one of the worst recessions in history, this bill would ensure that American women and their families aren’t bringing home smaller paychecks because of discrimination. It also helps businesses that pay equal wages as they struggle to compete against discriminatory competition. But a partisan minority of Senators blocked this commonsense law. Despite today’s vote, my Administration will continue to fight for a woman’s right to equal pay for equal work."

Now that the Republicans have added six senate seats, it is unlikely that any new anti-discrimination legislation will be passed for several years. In my opinion, these politicians have emboldened and encouraged those who would discriminate against women. Fortunately, here in New Jersey, we have strong laws against discrimination. If you are a female who feels you are being paid less than your male colleagues, contact a knowledgeable NJ employment attorney to discuss your options.

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October 3, 2010

Fox News Sued for Retaliation

Fox News has been sued by the Equal Employment Opportunity Commission ("EEOC") for asking a female employee to sign an employment contract which allegedly was intended to discourage her from making complaints of discrimination in the future.

The complaint alleges that Fox retaliated against news reporter Catherine Herridge after she complained that she was subjected to disparate pay and unequal employment opportunities because of her gender and age. The EEOC claims that during 2007, Herridge made several complaints to management officials at Fox News about employment practices that she believed were discriminatory. Fox conducted an investigation into Herridge's allegations but found no evidence of age and sex discrimination. Subsequently, when Herridge's employment contract was up for renewal, Fox inserted language which was allegedly intended to prevent the reporter from making further discrimination complaints. Herridge refused to sign, and she had to work without a contract for nine months, causing her considerable stress, according to the complaint.

Said the EEOC:
“The anti-retaliation provisions of Title VII and other federal anti-discrimination laws are indispensable to the attainment of a workplace free of discrimination. . . .Employers must take care that any action taken in response to a discrimination complaint is constructive and not retaliatory.”

In my opinion, if the allegations are true, Fox News is in for a beating. A company can't force an employee to sign away their right to make legitimate complaints of discrimination in advance. Anti-discrimination laws were enacted to eradicate discrimination; such a contract would seriously undermine the effectiveness of these laws.

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September 30, 2010

Court Upholds Dismissal of Discrimination Claim Against NJ Transit

In a decision released yesterday, the NJ Appellate Division upheld the dismissal of a discrimination claim brought by a NJ Transit employee. In Middleman v. New Jersey Transit, No. A-4203-08T2 (Sep. 13, 2010), the employee alleged she was discriminated against on the basis of her age, gender, and race when her employer failed to promote her to a foreman position. The court reviewed the promotion decision and found that NJ Transit had articulated several legitimate, non-discriminatory reasons for passing the employee over for promotion -- none of which the employee could effectively rebut.

On appeal, the employee argued that the trial court ignored evidence of a hostile work environment, which she claimed cast doubt on the employer's reasons for failing to promote her. The appellate court disagreed, finding that the employee had previously withdrawn her hostile work environment claim. The court focused solely on the claim that NJ Transit failed to promote the employee. On that claim, the employee failed to present any evidence to rebut the employer's argument that she performed poorly at the interview. Therefore her appeal was denied.

When companies are sued for discrimination, they have an obligation to explain themselves. They must come forward with legitimate reasons for decisions which otherwise seem discriminatory. This is not a heavy burden. In this case, the employer simply stated that the employee did not perform well at her interview. It then fell upon the employee to point to evidence which showed that reason to be false. She could have shown that the interview process was rigged from the start, or biased, or even overly subjective. She could have shown that other females were also rated poorly, while men were rated higher. Unfortunately for this employee, she could not present any evidence in her favor, and thus her case was dismissed.

If you are experiencing discrimination or harassment at work, it is imperative that you contact a knowledgeable employment attorney. Your career is at stake. Make sure the attorney you call is a specialist in this area.

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September 22, 2010

New Jersey Court Finds No Basis to Award Attorney Fees to Employer

When a Middlesex County judge dismissed her age discrimination case against Robert Wood Johnson University Hospital, Alice Michael was understandably upset. When the judge went on to rule that she had to pay the hospital over $120,000 in attorney fees because her case was “frivolous,” she was horrified. Ms. Michael is currently employed at the hospital as a low level computer operator making around $44,000 per year. The court’s decision would have bankrupted her. Fortunately, the Appellate Division intervened and reversed the decision, sending the case back to the trial court, where it was heard by a different judge. This time the court got it right, finding that Ms. Michael did not bring her claim in bad faith. The hospital, however, would not relent. It appealed the decision further. It was not until Ms. Michael’s husband passed away that the hospital withdrew its appeal, with nothing to show for the time and money it had spent trying to get Ms. Michael to pay.

At Ms. Michael's request, I reviewed the case of Alice Michael v. Robert Wood Johnson University Hospital and Michael Zegar, MID-L-10599-02, after the hospital withdrew its appeal. I was shocked to hear that a large, respected public institution like RWJ Hospital would be so aggressive and, quite frankly, vindictive, towards one of its employees. Although Ms. Michael’s claim was ultimately unsuccessful, there was no evidence that she brought it in bad faith. In my opinion, the hospital and its attorneys spent a lot of time and money trying to make an example out of Ms. Michael. They were trying to dissuade other employees who may feel they have been discriminated against from complaining. I am glad that the court saw through their plan and denied them the fees they were seeking. This case turned out to be a positive one for employees in New Jersey. It shows that employees will never be forced to pay their employer’s legal fees, unless the case is completely off-the-wall.

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September 15, 2010

Is Burning the Koran While Off-Duty Grounds for Termination?

According to New Jersey Transit, the answer is yes. The public railroad agency recently terminated long-time employee Derek Fenton for burning pages of the Muslim holy book in front of the planned Muslim community center and mosque near Ground Zero on September 11, 2010. Mr. Fenton claimed to be inspired to stage his protest by Florida pastor Terry Jones, who had threatened to burn the Koran but then backed down. In a press release issued after the termination, New Jersey transit stated that "Mr. Fenton's public actions violated New Jersey Transit's code of ethics. . . . We concluded that Mr. Fenton violated his trust as a state employee and therefore [he] was dismissed."

From an employment law perspective, it's clear that an employer can fire an employee for any reason or no reason at all. This is the meaning of the term "at-will employment." Just as Mr. Fenton had a right to protest, New Jersey Transit had a right to terminate his employment at will. For this reason, New Jersey Transit has not violated New Jersey law by terminating Mr. Fenton.

The moral of this story is that employers can use your actions outside of work as a basis for terminating your employment. When you engage in an act of protest such as Derek Fenton's, you have to be prepared to suffer the consequences, which can include losing your job.

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June 21, 2010

NJ Supreme Courts Hands Older Workers a Victory

Most of us these days are familiar with the term “age discrimination” and understand that employment laws exist to protect older workers from discrimination or harassment at their place of employment based on their age. However, there is a section of the Law Against Discrimination that specifically gives employers the right to not hire or promote individuals over the age of 70. This is often referred to as the Over-70 Exception. Thus, a New Jersey employer can refuse to hire or promote an individual who is over 70 years old on the basis of that individual’s age without running afoul of LAD.

Recently, the New Jersey Supreme Court, in Nini v. Mercer County Community College, was called upon to decide whether the Over-70 Exception applied to an employer's failure to renew a contract, as opposed to a failure to hire or promote. The defendant in this case argued that if the law permitted it to not hire Ms. Nini, then surely the law would permit it to not renew her contract, either. The Supreme Court disagreed with this argument, however.

The Court ruled in favor of older workers throughout New Jersey by limiting the Over-70 Exception to the two exceptions noted in the statute. According to the Court, the legislature only provided a safe harbor to employers for new hires, not employees who were currently employed, whether by contract or otherwise. This important decision means that all New Jersey employees over age 70 who currently hold positions cannot be fired for age-related reasons.

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March 24, 2010

Goldman Sachs Sued for Putting Women on the “Mommy Track”

A former vice president of the investment bank Goldman Sachs Group Inc. sued the Wall Street bank because, the complaint alleges, it consigned her to a “mommy track” that ultimately led to her firing while she was on maternity leave.

According to the lawsuit, Charlotte Hanna joined Goldman in 1998 as an associate, was promoted to vice president two years later, and received strong praise for her work. Upon returning from her first maternity leave in February 2005, Hanna opted to return, temporarily, on a part-time basis. She did not anticipate that she would hit a “glass ceiling” with respect to pay and advancement. But that is exactly what she encountered. The lawsuit alleges that she was systematically excluded from operations and social functions and eventually demoted. It also says that Ms. Hanna decided to take the “off-ramp” provided by the firm to devote more time to her children and there was no “on-ramp” that enabled her to return to full-time employment.

Ms. Hanna was selected for termination in 2009 as part of Goldman’s reduction in force. Ms. Hanna’s complaint says that 75 percent of those selected for termination in her group had recently taken maternity leave.

My firm has seen more gender and pregnancy discrimination cases since the economy began its downturn. Caregivers are particularly vulnerable when their company is looking to reduce its workforce. Managers who must designate which employees to downsize sometimes perceive that working mothers are expendable because of stereotypical assumptions -- including that the women will not work as hard as men or that they will eventually leave the company to stay at home with their children. If you have been unfairly selected for termination because you are on or recently returned from maternity leave, you may have a claim for unlawful discrimination and should contact a knowledgeable, experienced New Jersey employment attorney.

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March 22, 2010

Can a Company Fire an Employee for Taking Company Records that Help the Employee's Discrimination Case?

Can a company fire an employee for taking company records that help the employee's discrimination case? This is the question posed by the case of Quinlan v. Curtiss-Wright Corp., A-51-09, which was argued before the New Jersey Supreme Court on March 9, 2010. As reported in the New Jersey Law Journal, the Court is likely to answer this question in the affirmative. If it does, New Jersey employers will get a powerful new weapon to use against employees who may have taken confidential records during their employment.

The plaintiff in the Quinlan case is a Human Resources professional who felt that her employer was discriminating against her on the basis of gender. She secretly copied about 1800 pages worth of confidential company records. She then retained a lawyer and gave the records to him. Her lawyer filed a lawsuit and returned the records to the employer during the course of the litigation. When the employer found out about the records, it fired the plaintiff. The plaintiff then added a claim for retaliation to her gender discrimination complaint.

A jury found in favor of the plaintiff on her retaliation claim, but the verdict was overturned on appeal. The Appellate Division held that the plaintiff should not be permitted to benefit from her "theft" of confidential documentation.

On appeal to the New Jersey Supreme Court, the plaintiff's attorney argued that Ms. Quinlan was acting in good faith when she took the documents, and that she should not be penalized for doing what she thought was the right thing. The Court seemed to disagree, indicating that it would encourage "employee theft" if Ms. Quinlan were permitted to win her retaliation claim under these circumstances.

I would advise any New Jersey employees to consult with a knowledgeable and experienced employment attorney before undertaking any kind of "investigation" or "evidence gathering" on their own. New Jersey is an "at will" employment state and you do not want to give your employer a legitimate excuse to fire you. If you have a good discrimination claim, your lawyer will obtain the documentation you need to win the case by using the proper legal processes.

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February 24, 2010

NJ Toll Collectors Accused of Sexual and Racial Harassment

Apparently some drivers in NJ have been subjected to sexual and racial harassment in an unlikely place -- their own cars. According to website The Smoking Gun, toll collectors on the New Jersey Turnpike and Garden State Parkway have "gone wild" on motorists in over 550 reported incidents over the last 18 months. Some of these incidents have involved toll collectors propositioning female drivers and using racial slurs to African-American drivers.

Motorists on New Jersey's roadways are entitled to fair treatment and respect, regardless of their gender, race, age, or sexual orientation. While these incidents seem to be isolated and therefore not illegal, "drive by" harassment is wrong. The NJ Turnpike Authority should send a clear message to its workers that harassment of drivers, in any form, will not be tolerated.

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January 12, 2010

Sexual Harassment Between Two Companies

Elizabeth Zuckerman, an excellent plaintiff's employment lawyer based out of Princeton, NJ, just won an important decision in the case of J.T.'s Tire Service v. United Rentals North America, Inc., A-2989. According to the Appellate Division, an owner/operator of a business can sexually harass another business owner and be sued for discrimination.

Ms. Zuckerman's client was a female-owned business that sold tires to United Rentals. The business owner claimed that her company had been doing business with the Piscataway branch of United Rentals North America, a national equipment rental company, for approximately ten years. The female business owner alleged that in 2005, United Rentals' branch manager began pressuring her for a sexual relationship and, when she refused, stopped doing business with her until she agreed to have lunch with him. In 2007, the sexual advances became physical. When the female business owner rejected these advances, the rental company delayed its payments to her and then ceased doing business with her altogether.

The plaintiff filed her complaint under section 10:5-12(l) of the Law Against Discrimination, which makes it illegal to "refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person" on the basis of gender or other LAD-protected categories. In January 2008, Middlesex County Superior Court Judge Edward Ryan granted United Rentals' motion to dismiss, finding that this type of harassment was not covered by the statute.

The Appellate Division disagreed with Judge Ryan, and reversed his ruling. Said the Court: "Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim's sex." Further, the Court stated "we have no hesitation in concluding that quid pro quo sexual harassment violates subsection (l)."

I obtained a ruling based on subsection (l) several years ago in an age discrimination case entitled Rubin v. Chilton Hospital. Independent contractors are protected against discriminatory firings . . . and now, quid pro quo sexual harassment.

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November 20, 2009

EEOC to Enforce Genetic Nondiscrimination Act

The Equal Employment Opportunity Commission (EEOC) has assumed responsibility for enforcing the Genetic Information Nondiscrimination Act (GINA), an important piece of legislation which I blogged about in April and May 2008. This is the first expansion of the EEOC's enforcement powers since the passage of the Americans with Disabilities Act in 1990.

The law prohibits discrimination by health insurers and employers based on "genetic information," which includes the results of genetic tests to determine whether someone is at increased risk of acquiring diseases like cancer. Here in New Jersey, employees already had this protection under state law. With the passage of GINA, all Americans gained a measure of protection against employers who fear that an employee may be predisposed to ill health.

The EEOC's assumption of responsibility over the enforcement of GINA will make it easier for employees to assert their rights in this area. Further information about the EEOC is available on its web site at www.eeoc.gov

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June 9, 2009

The "After-Acquired Evidence" DefenseTakes a Hit

Employers who are sued for discrimination or retaliation will sometimes attempt to use what is known as the "after-acquired evidence" defense to limit the amount of damages that an employee can recover. This defense took a hit in the recently decided case of Redvanty v. Automated Data Processing, A-4082-06, thanks to the good work of the plaintiff's attorney, John Shahdanian II, of Secaucus, NJ.

The "after-acquired evidence" defense is used by employers who learn, after the employee has been terminated, that the employee had committed some misconduct either during their employment or during the interview process, such as lying on their job application. Employers argue that, if they had learned about the misconduct during the employment, they would have either fired the employee right then and there or never hired them in the first place. If an employer convinces a court that the defense should be applied, then the court will give the jury the option of reducing the employee's damages -- even if the employee has an otherwise valid discrimination or retaliation claim.

In the Redvanty case, the trial court let the jury hear the "after-acquired" evidence of the fact that the plaintiff had lied on her job application during the liability phase of the trial. The jury decided the case in favor of the employer. On appeal, Ms. Redvanty argued that the jury should only have been told about the job application during the damages phase of the trial, after the issue of liability had been resolved. The Appellate Division agreed, holding that the admission of the "after-acquired" evidence during the liability phase of the trial prejudiced the jury.

The Appellate Division then remanded the case, meaning that it was sent back to the trial court to be retried. At the new trial, the evidence will only be admitted during the liability phase if the trial court finds that the employer "definitely" would have fired Ms. Redvanty if it knew she had lied on her job application.

This is a very good decision for New Jersey employees. It clarifies that "after-acquired evidence" should not be used during the liability phase of a trial, except in rare circumstances where employer can prove that it "definitely" would have fired the employee sooner.

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May 27, 2009

Sotomayor's Even-Handed Record on Employment Cases

Supreme Court nominee Judge Sonia Sotomayor has an even-handed record when it comes to discrimination lawsuits and employment cases, in particular. Since becoming a federal appellate judge in 1998, she has written several opinions and dissents which sided with persons alleging discrimination, including an African-American elementary school student who claimed his demotion from first grade to kindergarten was racially motivated, and a law school graduate who needed extra time to take the bar exam because of a reading and learning disability. In the realm of employment law, she has ruled in favor of a security guard who filed his case too late because of a medical condition, a female police office who alleged sexual harassment and retaliation, and a group of job applicants who were denied jobs because there were taking medication.

At the same time, however, Judge Sotomayor has issued a number of decisions which went against employees. Recently, she ruled against a group of New York City fire alarm inspectors who asserted that they should be compensated for all or part of their commuting time because they are required to carry inspection documents during their commutes. She also upheld the trial court's denial of an employee's request to enter an injunction against her employer, seeking to prohibit the employer from retaliating against her witnesses by firing or disciplining them. In another case, she ruled that a group of corrections officers had not satisfied their burden of proving a connection between their whistleblowing and their employer's decision to discipline them.

The media has unanimously decided that Judge Sotomayor is a "moderate." Her fellow judges on the Second Circuit and commentators appear to agree. After reviewing some of her court decisions myself, I also agree that Judge Sotomayor is a very middle of the road jurist, at least with respect to discrimination and employment cases. In my view, President Obama has made a very wise political appointment -- one that will put him in the history books for appointing the first Hispanic Supreme Court justice, and at the same time leaves little room for opposition from congressional Republicans.

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March 22, 2009

Don't Email Your Lawyer from Your Work Computer

A recent case from the New Jersey Superior Court should make any employee who has ever used a work computer to send or receive email from an attorney a little nervous. In Stengart v. Loving Care Ag. Inc., No. BER-L-858-08 (Feb. 5, 2009), the Court held that the attorney-client privilege did not apply to emails between an employee/plaintiff and her lawyer which were accessed on the employee's work computer -- despite the fact that the emails were accessed through a personal, password-protected email account. The Court thus permitted the company to use the employee's emails to and from her attorney to defend against her discrimination claims.

As reported by the law firm of Buchanan Ingersoll & Rooney, the Court based its decision on the fact that the employer had a published electronic communication policy which "adequately warned employees that there [was] no reasonable expectation of privacy" with respect to any emails generated or viewed on company issued computers, and the fact that the employee was aware of the policy.

This decision reminds us that any time you contact your lawyer from your work computer, you run the risk of exposing the communication to your employer or other third parties. This situation is particularly dangerous for employees who are engaged in litigation with their current employers, although it applies to everyone. If you must communicate with your lawyer during the work day, the most prudent thing to do is to step outside the office and make a telephone call. Save the emails for when you get home from work.

March 20, 2009

E.E.O.C Publishes Amendments to Americans with Disabilities Act

For years, federal courts have had a field day chipping away at the Americans with Disabilities Act, reading it in an ever-narrower way and applying it to an ever-shrinking number of Americans. Finally, we have passed common-sense legislation which undoes all the damage the federal courts have done to the ADA over the years. Last September, Congress passed and President Bush signed the ADA Amendments Act of 2008. Today, the EEOC published a red-lined version of the law on its website, so you can see the original law and the changes to it all on the same page.

If you take a look at the text of the law itself, you'll see that the "Findings and Purpose" section of the new law specifically overturns two particularly bad U.S. Supreme Court decisions, Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The Sutton case had limited the ADA's protection for employees whose disabilities could be "mitigated" by measures such as medication, treatment, or medical devices, and the Toyota case had tightened the standard for individuals to be considered "substantially limited" by their disability.

The new law states that the definition of “disability” is to be interpreted “in favor of broad coverage of individuals . . . to the maximum extent permitted . . . .” This was the original intent of the ADA, which, in my view, had become lost by federal judges (particularly Republican Supreme Court justices) bent on "de-regulating" disability discrimination law out of existence. The amendment act is a stern rebuke to these judges and a re-affirmation of our country's important goal of eradicating discrimination in all its forms from the workplace.

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February 5, 2009

Pres. Obama Speaks on the Ledbetter Fair Pay Act

President Obama spoke so eloquently upon signing the Lilly Ledbetter Fair Pay Act, which I have blogged about previously, I thought it important to post his words here:

"So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time."

Not much you can say after that, is there?

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January 15, 2009

Is It Ever Okay to Be "Just Friends" with the Boss?

We all know that male bosses shouldn't sexually harass their female subordinates, and that female employees should promptly rebuff and report any inappropriate comments by their male bosses to HR or management. But what if you're a female professional and genuinely like your male boss, as a friend? Is it ever okay to be "just friends" with the boss? Some of my recent cases have brought home the message that when it comes to male supervisors and female subordinates, even being "just friends" with the boss is extremely risky.

The problem lies in perception. You may be completely well-intentioned. Your boss may be a family man, a genuinely nice guy. However, as soon as the friendship becomes known in the office, the time bomb starts ticking. Your coworkers may perceive the friendship as something more. An innocent lunch shared with your boss off-campus becomes fodder for speculation and gossip. Work-related telephone calls from your boss or one-on-ones with him only fuel the rumors more. Rumors in the workplace have a tendency to get out of hand quickly. If the rumors are made known to management, they may have send in HR to investigate whether the relationship is "consensual." Your integrity, your judgment, and your credibility will be called into question. Even if the investigation reveals nothing more than the "just friends" relationship, the damage to your career is done.

My advice to any female professional who is considering a "just friends" relationship with their male boss give careful consideration to the way such relationship will be perceived by everyone else in the workplace. It takes just one disgruntled employee to start a vicious and hurtful rumor that can spread like wildfire, damaging your valuable, hard-earned career in the process.

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January 5, 2009

2008 A Good Year for Employment Law Plaintiffs in New Jersey

2008 turned out to be a very good year for employment law plaintiffs who tried their cases in New Jersey courts. Indeed, as published in the New Jersey Law Journal's "New Jersey Legal Almanac 2008," there were six verdicts of more than $1,000,000 awarded by New Jersey juries to employment law plaintiffs, including two verdicts of more than $10,000,000. These verdicts should help make our State's employers think twice before engaging in any type of illegal discrimination or whistleblower retaliation toward their employees in 2009 and beyond.

We should keep these large verdicts in perspective, however. Statewide, there were 120 verdicts or settlements over $1,000,000 in 2008, so the percentage of employment law plaintiffs receiving seven-figure awards is relatively low. Also keep in mind that thousands of employment law cases are resolved by verdict or settlement in New Jersey each year, so the percentage of employment cases which result in large monetary awards is actually quite small.

Nonetheless, each plaintiff's victory in the field of employment law is a step forward in my and my colleagues' ongoing battle to eradicate discrimination and retaliation from the workplaces of this State. I heartily congratulate the dedicated plaintiff's employment lawyers who furthered our cause in 2008.

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November 16, 2008

Is it Discrimination to Accept the Resignation of an Employee Suffering from Depression?

A recent case illustrates how important it is for employers to engage in an interactive process with employees who suffer from so-called "hidden" disabilities, such as depression or other mental health ailments. In Smith v. State, 07-1689 (Iowa App. 10-29-2008), the employee began a medical leave after being diagnosed with depression. When she returned to work, still in a state of depression, she resigned. Her supervisor saw that she was upset, but accepted her resignation nonetheless. A few days later, however, the employee asked to withdraw her resignation. Her employer refused, and her subsequent applications for different jobs within the State were denied.

Ms. Smith filed a lawsuit contending, in part, that her employer failed to accommodate her disability of depression. She argued that her employer knew that she was suffering from depression when she submitted her resignation, and should have allowed her to rescind it. The employer argued that Ms. Smith never explicitly asked for any accommodation, and therefore did not need to engage in any discussion with Ms. Smith or her doctors about why she had suddenly quit.

The Court sided with the employee, stating that the absence of an explicit request for accommodation or help was not fatal to her claim. Said the Court: "[P]roperly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say 'I want a reasonable accommodation,' particularly when the employee has a mental illness. The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help."

This case is important to New Jersey's professionals and executives who may suffer from depression or other mental health disabilities. While it is usually wise to expressly request accommodations for your disabilities, preferably in writing, this case stands for the principle that employers have a duty to inquire and explore whether you are "in your right mind" if you are obviously upset and decide to leave your job.

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October 13, 2008

Proving Unfair Treatment Is Easy . . . But Only Gets You So Far

Many people come to me for advice after being treated unfairly in the workplace. Some have been passed over for promotions in favor of less-qualified people, some have been denied raises or bonuses they deserved, others have been harassed by managers or coworkers to the point that they have to take a medical leave or even quit their job because of the stress. I sympathize. We go to work each day to put bread on the table, pay our bills, and support our families the best we can. We treat our employers with respect and expect to be treated with respect in return.

However, just because you have been treated unfairly in the workplace does not mean your employer has done something unlawful. This is because we live in a country of "at-will" employment, meaning that we serve at the pleasure of our employers and can be terminated for any reason, at any time. Short of termination, employers can take any number of measures adverse to the employee, including demotion, transfer, disciplinary action, and even "harassment" in the sense of poor treatment which is not related to one's gender, race, religion, color, disability, whistleblower status, or other protected category.

It's often quite easy to prove that someone has been treated unfairly in the workplace. An employer's own documents, in the form of personnel files or other internal memoranda, can prove that someone was singled out and treated differently. The employee's testimony and the testimony of his or her coworkers can corroborate the fact that unfair treatment occurred. But proving unfair treatment will only take you half the way there. To win an employment case, the employee must have evidence showing the "why:" you must show why your employer treated you differently. And the reason must be either discrimination or retaliation.

Proving that an employer had a discriminatory or retaliatory intent when it acted adversely to an employee is the fundamental challege of every employment case. There is usually no "smoking gun" evidence, for example, a racist comment captured on audiotape. However, competent employment attorneys, who know where to look, can often find "indirect evidence" of discrimination or retaliation. Indirect evidence takes many forms, each dependent on the facts of a particular case.

If you feel you have been the victim of discrimination or retaliation, as opposed to unfair treatment, please consult with a competent New Jersey employment attorney who knows how to turn your "indirect evidence" into a winning case and get you the justice and compensation you deserve.

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September 1, 2008

Single Anti-Gay Remark Can Create a Hostile Work Environment

Thank God we live and work in New Jersey, where the anti-discrimination laws are strong and the Courts are tough against bigoted employers. Our appeals court recently held that calling an employee a "stupid fag" just once is enough to create a hostile work environment. Moreover, the appeals court ruled that the single anti-gay epithet was potentially enough to support a claim of intentional infliction of emotional distress. This claim is notoriously hard to prove, since the plaintiff is required to show that the hurtful conduct was "so extreme or outrageous as to go beyond all bounds of decency in a civilized society."

This decision looks a lot like the landmark case of Taylor v. Metzger, in which the New Jersey Supreme Court held that a single remark of "jungle bunny" was enough to create a racially hostile work environment. Taken together, these cases make it unmistakably clear that New Jersey is a "no tolerance" state when it comes to bigoted or prejudiced remarks in the workplace.

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August 4, 2008

Former Kean University Administrator Sues for Race, Gender and Age Discrimination

We recently filed a lawsuit on behalf of Ms. Beverly Berry Baker, who worked for Kean University, Union, New Jersey, as the Director of its Exceptional Educational Opportunities (“EEO”) Program for almost 40 years. According to the Complaint filed in the Superior Court of New Jersey, Union County, in the matter Beverly Berry Baker v. Kean University, Docket No. UNN-L-2646-08, Ms. Baker’s employment took a “sudden and drastic turn for the worse” after the Kean hired Dr. Dawood Farahi as its President in 2003. Ms. Baker alleges that shortly after Dr. Farahi became University President, Kean began harassing and discriminating against herself and other African-American female administrators and faculty. Kean terminated Ms. Baker from her administrative position in December 2007.

According to the lawsuit, Ms. Baker devoted the better part of three decades to Kean University and its EEO Program, a state-funded program which helps disadvantaged students enroll in and finish college. Ms. Baker alleges that, beginning in 2004, Kean subjected her office to three unnecessary audits, all of which revealed no financial impropriety, suspended her without pay for 30 days, gave her the three worst job performance reviews in her career and refused her annual salary increases. According to Ms. Baker, these actions are inconsistent with the fact that the Kean EEO Program received the State’s highest rating in recent years.

Ms. Baker’s Complaint alleges that when Ms. Baker informed Kean she would need a brief medical leave in August 2007, the University terminated her from her position as Director of the EEO Program and replaced her with a younger non-African American male with no prior EEO experience. Ms. Baker alleges that when she returned to work in November 2007, Kean terminated her from its administrative staff and placed her in a junior faculty position at two-thirds her former salary. Ms. Baker claims that the University then placed her on an involuntary sabbatical for the Spring 2008 semester, causing her to lose her ability to use accrued sick and vacation days. Ms. Baker alleges that these actions constituted a “constructive discharge,” meaning that she was forced to resign. Ms. Baker’s lawsuit alleges that the University has subjected at least nine other African-American female professors and administrators to similar conduct since 2004.

In my opinion, the facts of this case are extremely sad . . . and at the same time maddening. Here was a woman who gave Kean University almost 40 years of her life, helping thousands of disadvantaged students achieve the dream of graduating from college, who was stripped of her reputation, her dignity, and her means of supporting herself, for no legitimate reason. We think the taxpayers of this State should be outraged at how this publicly-funded university apparently operates.

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July 31, 2008

NJ Supreme Court Clarifies Standard for Religious Discrimination Claims

The New Jersey Supreme Court spoke definitively today in the case of Cutler v. Dorn, A-51 September Term 2007 (N.J. July 31, 2008), about the legal standard for hostile work environment claims based on religious discrimination. The unanimous Court held that religious harassment and sexual harassment claims are essentially identical in the proofs required to win at trial. The decision brings an end to the confusion caused by an older Appellate Division case, Heitzman v. Monmouth County, which appeared to hold that religious discrimination claims were to be judged by a tougher standard than sexual harassment claims.

The plaintiff in this case, Jason Cutler, was a police officer in Haddonfield Township. He is Jewish. Over the course of his employment, Officer Cutler's coworkers and supervisors made various remarks and comments to him about Jews, including asking him "where [his] big Jew . . . nose was,” stating that “Jews are good with numbers,” asking him “why didn’t [he] go into [his] family business . .. why [is he] here,” and “Jews make all the money.” There was an incident where someone placed an Israeli flag, and then a German flag, on his locker. The straw that broke the camel's back occurred when Officer Cutler's coworker made a comment about "getting rid of those dirty Jews."

The Court agreed with Officer Cutler that a person of Jewish faith and ancestry could "reasonably feel that his sense of belonging was shaken" on repeatedly hearing those remarks, and that it was "no stretch to imagine that, for the hearer/recipient of those ongoing insults to his ancestry and core beliefs, which were uttered by his coworkers and, worse, his supervisors, the workplace was altered for the worse." The Court continued, saying "the reference to 'dirty Jews,' and the further iteration of that comment to 'let’s get rid of all those dirty Jews,' harkened Cutler back to thoughts of one of the lowest times in mankind’s history, the Holocaust."

The Court held that these facts satisfied Officer Cutler's burden to prove that a reasonable Jewish person would consider the workplace acts and comments made to, or in the presence of, Officer Cutler "to be sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment." The Court then reinstated the jury verdict in Officer Cutler's favor.

This is a fantastic decision for New Jersey employees of all faiths. No one, be they Muslim, Christian, Hindu, or Jew, should be subjected to these types of idiotic and bigoted remarks at work. My heartfelt congratulations go to Officer Cutler, his attorney Clifford Van Syoc, and the amici curaie from NELA, the Anti-Defamation League, and The Sikh Coalition. Thank you to all for pursuing this case to our highest court and winning justice for us all.

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July 22, 2008

EEOC Offers New Guidance on Religious Discrimination

The Equal Employment Opportunity Commission updated its Compliance Manual on religious discrimination today. The new guidance comes at a time when religious pluralism has increased in the American workforce. With this increase in religious diversity, there has been a corresponding rise in the number of religious discrimination claims filed with the EEOC; in fact, the number has doubled in the last 15 years.

The topics covered by the updated Compliance Manual include the following:

• Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.

• Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.

• Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.

• Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.

• Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

The Compliance Manual is meant to be studied and used by EEOC investigators. However, it makes interesting reading for my potential clients, as well as Human Resources professionals and employer counsel. I recommend it to anyone who is involved in a case or potential case of religious discrimination.

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July 2, 2008

U.S. Senate Considering Amendments to Americans with Disabilities Act

The U.S. Senate is now considering a bill which will amend the Americans with Disabilities Act ("ADA"). The bill, which passed the U.S. House of Representatives last Wednesday, is designed to make the ADA applicable to more employees. Over the past decade, federal courts, including the Supreme Court, have narrowed the definition of disability to exclude persons whose disabilities are mitigated by treatments including prescription drugs, hearing aids and artificial limbs. The new bill, entitled the ADA Amendments Act of 2008, explicitly rejects this narrow definition. Under the proposed law, a person will be qualified as "disabled" under the ADA without regard to whether the disability is treatable, treated, or in remission.

The New York Times has reported that the Senate bill has bipartisan support, as well as tentative support from the President. A vote on the legislation should take place in the near future, according to Senate Democrat Tom Harkin.

As an employment litigator familiar with prosecuting cases of disability discrimination, I believe the ADA Amendments Act is necessary. I have advised many clients to avoid federal court if they have a disability discrimination claim. Instead, I bring my disability discrimination cases only in New Jersey state court, under the New Jersey Law Against Discrimination. Unfortunately, however, in my experience, the restrictive definition of "disability" that has been read into the ADA by the federal bench has creeped into our State courts as well. The ADA amendments will right the ship and make it easier for New Jersey employees and employers to work together to end disability discrimination.

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June 27, 2008

Rep. Andrews Takes on Transgender Discrimination

Rep. Rob Andrews, D-N.J., held a hearing on transgender discrimination yesterday in the Capitol, winning praise from gay, lesbian, bisexual, and transgender communities. This was the first ever congressional hearing on transgender rights. Rep. Andrews called the hearing as Chairman of the Health, Education, Labor, and Pensions (HELP) subcommittee of the Committee on Education and Labor. Rep. Andrews, who is not seeking reelection to his congressional seat, defended his decision to conduct the hearing by stating that "Congress has a responsibility to protect all Americans from unfair discrimination."

Rep. Andrews called several witnesses who had personally experienced transgender discrimination, including retired Colonel Diane Schoroer. Ms. Schorer testified that a job offer as a terrorism analyst was quickly rescinded after she revealed to the Library of Congress that she was a transgender person. Ms. Schoroer retired from the military after a distinguished career as David Schoroer. Ms. Schorer's story is below.

Additional witness testimony can be found at the National Center for Transgender Equality website.

Kudos to Rep. Andrews for understanding that discrimination against any minority, no matter how small or misunderstood, is discrimination against everyone.

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June 26, 2008

Discredited UMDNJ Dean Alleges Racism in Lawsuit

William Wallace, former Senior Associate Dean for Academic and Student Affairs for the University of Medicine and Dentistry of New Jersey, has filed a lawsuit against the University claiming he was fired in June 2006 for exposing racist hiring practices. Mr. Wallace was terminated by the University after federal monitor Judge Herbert Stern determined that Mr. Wallace abused his position as second in command at UMDNJ's School of Osteopathic Medicine in Stratford in myriad ways, including getting subordinates to submit expenses for him, devoting a "significant" amount of university time and resources to his political jobs, and giving a no-bid catering contract to a friend in exchange for free meals. The monitor also concluded that Mr. Wallace used his influence to try to get his daughter into medical school without the required essays or test.

I find it noteworthy that Mr. Wallace waited until the very end of his two year statute of limitations to bring this case. To me, that means he had a very hard time finding an attorney who would take his case. If you have a hard time finding an attorney to take your case, it generally means you don't have a good case.

I cannot personally comment on the merits of Mr. Wallace's claims; however, I can vouch for the thoroughness and precision of the Federal Monitor's team of investigators and attorneys. If they say you're guilty, you're guilty. I will also say that frivolous discrimination lawsuits not only waste taxpayer money, but hurt the real victims of discrimination and retaliation, who juries paint with the same brush as the fakers. Perhaps Mr. Wallace should have left well enough alone.

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June 16, 2008

Asian Discrimination at Princeton University Subject of Federal Investigation

The U.S. Department of Education is widening an investigation into whether Princeton University is discriminating against Asian applicants by artificially capping the number of students of Asian background it admits each year. The investigation was sparked by a 2006 lawsuit filed by Jian Li, a Chinese immigrant who grew up in Livingston, NJ, who was rejected for admission into Princeton's class of 2010 although he had perfect SAT scores, was in the top 1 percent of his high school class, and had significant extracurricular activities. The DOE is examining Princeton's admissions data for the class of 2010 to determine whether Asians have been discriminated against. The University denies any discrimination, stating that 14% of its freshman class last year was Asian.

Mr. Li, who was also rejected at Harvard, Stanford, MIT and U. Penn, told the Yale Daily News that his case is based on a study of admissions processes published by three Princeton researchers in 2004, "which found that while elite universities gave African-American applicants an advantage equivalent to 230 extra SAT points and Hispanic applicants 185 points while making admissions decisions, the schools placed Asian-Americans at a disadvantage equal to a loss of 50 SAT points." This phenomenon has been labeled "disaffirmative action." The researchers concluded that if colleges stopped using affirmative action quotas in admitting students, Asian students would fill nearly four out of every five places that are currently taken by black or Hispanic students.

The jury is still out on whether affirmative action policies in our colleges and universities are having a desirable effect. Are quotas an effective tool in ending racism, or are they just another form of racism? I guess it depends on who you speak to, a fact which speaks volumes.

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June 14, 2008

Town of Secaucus Liable for Sexual Orientation Discrimination

NELA colleague Neil Mullin, Esq. won a significant victory for a gay couple who claimed they were harassed and discriminated against by firefighters in the Town of Secaucus, NJ. The plaintiffs alleged that they were subjected to anti-gay epithets and death threats after they asked the firefighters, whose station house was next to their residence, to quiet down. The plaintiffs alleged that the Town promoted two of the individuals involved, instead of disciplining them. The jury ruled in favor of the couple, concluding that Secaucus was responsible for the actions of the firefighters who perpetuated the attack, and that town officials had been indifferent to the harassment and discrimination the men experienced.

Mr. Mullin told The Hudson Reporter that he hoped the verdict "will signal to the Town of Secaucus the need to make some major changes. The mayor, the town attorney, and administrator failed to take any significant action to protect these men when their lives were in danger."

Having litigated against municipalities myself, I know that these cases are complicated and highly adversarial. My heartfelt congratulations to a terrific attorney and his team, and to the two gentlemen who prevailed in this case.

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June 2, 2008

EEOC Obtains $2.2 Million Settlement for Sexual Harassment and Racial Discrimination

The Equal Employment Opportunity Commission obtained a $2.2 million settlement today from the landmark New York City restaurant, Tavern on the Green. The EEOC's lawsuit, filed in September 2007, alleged that the restaurant engaged in sexual harassment, racial discrimination, and retaliation against workers who complained about these unlawful conditions. At the time the lawsuit was filed, Tavern on the Green's attorney told the press that "the restaurant conducted a thorough investigation of the allegations when they were first made some time ago and found them "entirely devoid of merit.'" That must have been some great "investigation," huh?

Congratulations to the EEOC for its significant victory. And a big "boo" to Tavern on the Green for harassing, discriminating against, and retaliating against its employees . . . and then claiming that the victims of this conduct were lying. I hope this major settlement sends a message to other corporate wrongdoers that they cannot hide their heads in the sand when their managers and supervisors harass, discriminate, and retaliate against their subordinates. Wake up and smell the litigation.

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May 19, 2008

Wrongful Termination: Why an Apology Could Be Enough

In my experience, most people who sue their employers for discrimination or retaliation are not looking for money. They are looking for justice. They want a wrong to be righted. They want an admission of guilt from the employer, an acknowledgment that it messed up. In short, they want an apology. Unfortunately, an apology is the one thing my clients never get. They might get some money. They might get some self-respect back and some vindication. But those three little words they want to hear so badly -- "I am sorry" -- will never, ever come. And that's a shame.

So-called "apology laws" are on the books in 34 states in the medical malpractice area. Under these laws, apologies made by health professionals to injured patients are not admissible in court. This encourages doctors, who are only human after all, to own up to their mistakes and apologize without having a plaintiff's attorney ram it down their throat at trial. The New York Times reported yesterday that hospitals which have adopted this approach have seen their medical malpractice lawsuits diminish substantially. http://www.nytimes.com/2008/05/18/us/18apology.html?pagewanted=1&_r=2&hp

This approach would work quite well in employment discrimination and retaliation cases. I recently resolved a whistleblower case largely because the employer owned up and admitted it made a mistake. I was stunned. My client was satisfied. The case got settled. I know a lot of my cases would go the same way if the employers did the right thing and acknowledged their wrongdoing.

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May 2, 2008

Congress Passes Bill to Ban Genetic Discrimination

The U.S. Senate has finally acted on the Genetic Information Nondiscrimination Act of 2007 by approving it with a vote of 95-0. This bill had passed the House of Representatives by a vote of 420-3 last year but languished in the Senate. President Bush supports the bill, and has said that he will sign it. This legislation is long overdue; similar bills to ban discrimination against persons with genetic disorders have been in Congress for the last 13 years.

The bill will bring welcome relief to people who suffer from debilitating genetic disorders, such as Tay-Sachs disease and Cystic Fibrosis, and who have experienced discrimination either from their employers, potential employers, or health insurers. The bill prohibits employers from using genetic information in hiring, firing, pay or promotion decisions. It bars health insurers from requiring clients to submit to genetic testing, and also from rejecting coverage or raising premiums for healthy people based on an inherited genetic predisposition to develop a particular condition.

As I wrote in my April 18, 2008 blog post, the purpose of this law and its New Jersey counterpart is to encourage Americans to take advantage of genetic testing as part of their medical care and protect them from employers who would "screen" them out of jobs based on stereotypes or other false assumptions about genetic disorders. These are laudable, common sense goals and I congratulate the many people and organizations who stood behind this bill and supported it all these years.

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April 25, 2008

Pay Discrimination Bill Dies in Senate

The Lilly Ledbetter Fair Pay Act, a bill which would have allowed employees who suffer discrimination in their pay checks to sue within six months of the last discriminatory paycheck received, has died in the Senate last evening. Republicans, with the support of President Bush and the Chamber of Commerce, led the effort against the measure, which failed to reach cloture by four votes.

The Act would have overturned a horribly decided 2007 Supreme Court opinion which held that an employee must bring a separate pay discrimination claim within six months of each discriminatory paycheck, even if the employee does not find out about the pay disparity for years. That is exactly what happened to Lilly Ledbetter, an employee of Goodyear who suffered pay disparity unbeknownst to her for many years. When she found out that her similarly-qualified male peers were making tens of thousands of dollars more per year for the same work, she brought an EEOC Charge of Discrimination. A jury trial followed, and Ms. Ledbetter won a substantial verdict. Goodyear appealed, arguing, in essence, that Ms. Ledbetter had the obligation to file a new EEOC Charge every time she got a bad paycheck. The Supreme Court, in an opinion written by New Jersey's own Justice Samuel Alito, agreed with this twisted logic.

Ms. Ledbetter describes the scene best:

The Ledbetter Fair Pay Act would have addressed this inequity by making the law clear that employees do not have to file multiple claims or preemptive claims if they suspect they are being discriminated against in their rate of pay. This is common sense legislation that must be passed at the next possible opportunity.

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April 24, 2008

Differences Between Unfair Treatment and Unlawful Conduct in the Workplace

Most, if not all, employees experience unfair treatment at work at some time or another. Unfair treatment can include being passed over for a promotion or better opportunity because of nepotism, favoritism, or office politics. It can include a boss who is a bully and yells and screams at you for no reason. It can include being falsely accused of breaking office policy or work rules, or even committing a crime! By this point in my career, I've pretty much heard it all. Nothing surprises me when it comes to what goes on in New Jersey workplaces.

Unfortunately, as I have told countless employees over the years, there is no law against "unfair treatment" in the workplace. New Jersey, like every other state, is an "at will" employment state. "At will" employment means that your employer can take any action it wants towards you for any reason or no reason at all. You can be disciplined, demoted, transferred, "harassed" in the generic sense, or terminated at any time. On the plus side, you can quit your employment at any time, for any reason or no reason at all.

In certain cases, employers cross the line into unlawful conduct, which includes discrimination on the basis of age, gender, race, nationality, disability, sexual orientation, and the like. Unlawful conduct also includes retaliation against whistleblowers and employees who receive statutory benefits, such as FMLA leave. Actionable conduct can also include fraud, misrepresentation, breach of contract, defamation, and intentional infliction of emotional distress.

Before you contact an employment attorney for advice, consider whether the treatment you have suffered at work is due to unfairness or unlawful conduct. If the former, consider whether you can do anything to fix the situation "in house." I give some strategies for dealing with unfair treatment in a previous post. If the latter, do not hesitate to engage a competent, knowledgable employment attorney who can lay out your legal options and help you decide what steps to take. In either case, feel free to contact my firm for a free telephone consultation. We can quickly diagnose your situation and will let you know how we can help.

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April 18, 2008

Symposium Highlights Need for Federal Genetic Nondiscrimination Legislation

The prevention of genetic diseases affecting the Jewish population was the topic of a recent symposium held in Philadelphia, PA. The good news is that genetic testing for deadly and disabling diseases such as Tay-Sachs and Cystic Fibrosis has improved substantially in the last several years, as have efforts by religious and community leaders to raise the awareness of Jewish couples who are at risk of passing on the genes for these disorders to their children. The bad news is that the law has lagged behind the science in this area. Federal legislation which would prevent discrimination on the basis of genetic information has stalled in the United States Senate. The bill, entitled the Genetic Information Nondiscrimination Act of 2007, passed the House of Representatives by a vote of 420-3 last year. President Bush also supports the bill. It appears to have strong bipartisan support. So what's the hold up?

Here in New Jersey, our Law Against Discrimination prohibits employment discrimination on the basis of genetic information, or on the basis of an employee's refusal to submit to a genetic test, or on an employee's refusal to make available the results of a genetic test to an employer. Federal genetic nondiscrimination law would make similar prohibitions mandatory in all fifty states. The purpose of these laws is to encourage Americans to take advantage of genetic testing as part of their medical care and protect them from employers who would "screen" them out of jobs based on stereotypes or other false assumptions about genetic disorders. Does anyone have a problem with these goals? Please urge your U.S. Senator to act on the Genetic Information Nondiscrimination Act of 2007.

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April 14, 2008

Should Age Discrimination be Permitted in Choosing a President?

Some bloggers and other opinion writers have suggested that a candidate's age should be a factor in choosing our next President. Some have even advocated that the Constitution of the United States of America be amended to place an upper age limit of 60 for candidates seeking election to the presidency. I think these people are dead wrong. Age discrimination should never, in my opinion, bar someone from a job, even a job as important as the President of the United States. Each candidate for president, and each job seeker generally, should be judged individually on his or her merits, i.e., intellect, character, and leadership ability. Otherwise, aren't we turning the Age Discrimination in Employment Act and New Jersey Law Against Discrimination on its head?

Granted, there are exceptions carved out of the anti-discrimination statutes for certain jobs which have specified age range as a bona fide occupational qualification. But the presidency is not a job which fits into these categories. As long as a candidate is qualified to run for office, his or her age should not be a factor.

I have too many clients over the age of 55 who come to me after being terminated and cannot find replacement employment. The companies that refuse to hire my clients or do business with them are violating the law if age is a factor in their decisions. What kind of message would it send to corporate America if we bar otherwise qualified candidates from running for president simply because of their age?

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April 9, 2008

Sexual Orientation Discrimination Has a Foe in NJ State Senator

State Senator Raymond Lesniak wrote an eloquent op-ed piece on April 3, 2008 regarding the Polish goverment's decision to refuse to ratify the Lisbon Treaty, an EU document which prohibits discrimination on the basis of sexual orientation. According to the article, "Poland's President linked the marriage of a gay couple living in New York City with Polish anxieties about German occupation," a comparison which Sen. Lesniak called "bizarre and shameful."

Sen. Lesniak, who represents the 20th Legislative District, consisting of the City of Elizabeth and neighboring Union County communities, is proud of his Polish heritage. Some time ago, he protested a racial slur against Polish people by a local radio station. Garden State Equality, a gay rights advocacy group, joined and supported his protest.

Sen. Lesniak stated, quite correctly in my view, that "discrimination on the basis of sexual orientation has no basis to exist anywhere, let alone in Poland which has encountered discrimination countless times at the hands of neighboring countries and alliances."

I applaud this New Jersey politician who clearly "gets it" when it comes to the critical issue of eradicating discrimination in all its forms, and especially discrimination which is condoned, and therefore tacitly sponsored, by the state. Good job, Senator!

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April 3, 2008

Strategies for Dealing with Unfair Treatment in the Workplace

New Jersey's Law Against Discrimination prohibits employers from taking adverse actions against their employees on the basis of race, gender, age, religion, sexual preference, disability, or membership in other protected categories. The law does not prohibit an employer from taking negative actions against employees for other reasons, such as nepotism, favoritism, office politics, and the like. Yet employees who lose their jobs for these reasons, or who endure harassment or bullying which is not “discriminatory” in the legal sense, often suffer the same emotional and financial upset as do victims of unlawful discrimination. What are some strategies for dealing with unfair treatment in the workplace?

I would advise anyone experiencing negative treatment in the workplace to immediately begin to diary or journal the events as they occur. If the situation worsens and becomes legally actionable down the road, the written record can be important evidence in your case. In addition, the act of writing down your problems can have a cathartic and healing effect.

Next, you should report the unfair treatment to your Company’s human resources department, preferably in writing. Yes, I know, they won’t do anything about it. But, again, the main reason for making the report is to create a paper trail which may come in handy down the road. There is also the slight chance that they actually listen to you and try to help you.

If you have documented and reported the unfair treatment and it still persists, you should seriously consider changing jobs. Situations like these tend get worse over time, not better. I’m speaking from personal experience, as well as what I’ve learned from counseling employees for the last ten years. You will wind up quitting or getting fired some time down the road anyway, and in the meantime you will be extremely stressed out, lose sleep, get depressed, angry, or anxious, all of which can lead to more serious health problems. No job is worth losing your health. The decision to leave a job on your own terms, on your own timetable, is an empowering one. Just make sure your job search does not interfere with your current job duties or violate any non-compete agreements you may have signed. It goes without saying that you should never quit a job until you have secured a new one.

If you are an employee caught in the gray area between unfair treatment and illegal discrimination or retaliation, consider speaking to a competent employment attorney who can lay out your options and help you make an informed decision about your next career move.

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