New Jersey Employment Lawyer Blog

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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Posted In: Discrimination and Harassment , Whistleblower Retaliation

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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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Posted In: Civil Rights Violations , Discrimination and Harassment , Food for Thought , Wage and Hour Claims , Whistleblower Retaliation

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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.

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Posted In: Civil Rights Violations , Discrimination and Harassment , Employment Contracts , Food for Thought , Non-Compete Agreements , Severance Negotiations , Wage and Hour Claims , Whistleblower Retaliation

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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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Posted In: Discrimination and Harassment , Severance Negotiations

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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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Posted In: Discrimination and Harassment

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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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Posted In: Discrimination and Harassment , Food for Thought

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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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Posted In: Discrimination and Harassment , Employment Contracts , Whistleblower Retaliation

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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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Posted In: Discrimination and Harassment

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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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Posted In: Discrimination and Harassment , Food for Thought

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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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Posted In: Discrimination and Harassment

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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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Posted In: Discrimination and Harassment

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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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Posted In: Discrimination and Harassment

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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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Posted In: Discrimination and Harassment

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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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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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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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Posted In: Discrimination and Harassment , Food for Thought , Whistleblower Retaliation

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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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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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Posted In: Civil Rights Violations , Discrimination and Harassment

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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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Posted In: Discrimination and Harassment , Whistleblower Retaliation

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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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Posted In: Civil Rights Violations , Discrimination and Harassment , Food for Thought , Whistleblower Retaliation

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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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Posted In: Discrimination and Harassment

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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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment

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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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Severance Negotiations

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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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Posted In: Discrimination and Harassment

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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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Posted In: Discrimination and Harassment

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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!

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Food for Thought

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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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Non-Compete Agreements , Severance Negotiations , Whistleblower Retaliation

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