Employment Discrimination

March 20, 2014

Lawsuit in New Jersey State Court Accuses Police Department of Sexual Harassment, Race Discrimination, and Harassment

A lawsuit filed in a New Jersey Superior Court against a police department and several police officials seeks over $1 million in damages for alleged race discrimination, sexual harassment, and retaliation. The plaintiff in Cruz v. Old Bridge Police Department, et al alleges that the department ignored her repeated complaints of sexual harassment because of her race, and then subjected her to retaliation and a hostile work environment that prevented her from returning to work. The New Jersey Law Against Discrimination (NJLAD) protects workers from employment discrimination based on factors like race and sex, and includes sexual harassment as a form of gender discrimination.

The plaintiff, according to local news coverage, was hired in May 2004 as an auxiliary police officer for the Old Bridge Police Department. This is a part-time position that works certain events, assisting the police department by providing crowd and traffic control. She alleges that a lieutenant began sexually harassing her shortly after she was divorced by asking her questions and making comments of an inappropriate sexual nature, and with direct sexual advances. She asserts that she asked him to stop and reported the matter to the department’s Internal Affairs unit, but the harassment continued.

When the lieutenant was promoted to captain, he became the plaintiff’s direct supervisor. She claims that he created a hostile work environment by “ostraciz[ing] here” and behaving in a “disrespectful and…demeaning manner.” The department ignored her complaints, she claims, because she is a black Hispanic woman. She received a charge of “conduct unbecoming” that she claims was false, and in September 2011 she was suspended without pay for allegedly submitting false time records in order to increase her pay. She also denies this charge. The department did not fire her, but reportedly also did not set an end date for her suspension. The township listed her employment status as “did not return,” according to the Home News Tribune. She either quit or was terminated by the department in December 2011.
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March 14, 2014

New Jersey Employers Required by State Law to Provide Employees with Notice of Gender Equity Rights

by Resnick Law Group, P.C.

A 2012 law amending the New Jersey Equal Pay Act requires employers with at least fifty employees to provide official notice to workers of their rights regarding gender equity under state and federal anti-discrimination and pay equity statutes. The New Jersey Department of Labor and Workforce Development (NJDOL) published final notice forms on January 6, 2014. Under the thirty-day deadline established by the 2012 law, employers had until February 5 to provide the notice to all current employees. The 2012 law does not identify a penalty for failing to meet this deadline, and the NJDOL has not stated how it will handle noncompliance. Penalties for similar regulatory infractions might offer some idea of what employers might face.

The New Jersey Assembly passed A2647, which “[r]equires employers [to] post notice of worker rights under certain State and federal laws,” on June 25, 2012, and the governor signed it into law on September 19, 2012. It did not provide a specific date for employers to comply with its requirements, but rather set a deadline of thirty days after publication of final notice forms by the NJDOL. This took place on January 6, 2014, making the initial deadline February 5. For employees hired after that date, employers must provide the notice by the end of the calendar year in which an employee was hired.

The official notice form published by the NJDOL, entitled “Right to be Free of Gender Inequity or Bias in Pay, Compensation, Benefits or Other Terms and Conditions of Employment,” outlines workers’ rights under two federal statutes and two New Jersey statutes:
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February 26, 2014

New Jersey Appellate Division Upholds State Law Prohibiting Hiring Discrimination Based on Unemployment

by Resnick Law Group, P.C.

The Appellate Division of the Superior Court of New Jersey ruled that a state law prohibiting discrimination based on unemployment did not violate employers’ First Amendment rights of free speech. New Jersey Dept. of Labor and Workforce Development v. Crest Ultrasonics, No. A-0417-12T4, slip op. (N.J. App. Div., Jan. 7, 2014). The plaintiffs alleged that the statute, N.J.S.A. §§ 34:8B-1 et seq., infringed on their free speech rights by improperly regulating the content of public job listings. The court held that the statute meets the requirements set forth by the U.S. Supreme Court for content-based restrictions on commercial speech. The ruling is excellent news for New Jersey’s workers and job seekers, many of whom have experienced lengthy periods of time without work.

Unemployment can become a catch-22 for some job seekers, as employers might be unwilling to hire someone who has been out of work for six months or more. The longer one goes without work, the harder it can be to find a job. The law, enacted by the New Jersey Legislature in 2011, seeks to address this problem by placing restrictions on advertisements in print media or on the internet for job openings within the state. Advertisements may not state that current employment is a requirement for a job, that an employer will not consider applicants who are currently unemployed, or that an employer will only consider applicants who are currently employed. The law does not, however, prevent employers from using unemployment as a criterion in their actual decision-making.

Shortly after the law took effect, the plaintiff placed a classified advertisement in the Burlington Times for a service manager position. The ad appeared on August 31, 2011 and stated that applicants for the position “[m]ust currently be employed.” The Department of Labor and Workforce Development (LWD) determined that the company had violated N.J.S.A. § 34:8B-1 and assessed a fine of $1,000. The Commissioner of the LWD affirmed the penalty in an administrative decision issued on August 17, 2012, and the company appealed the decision to the Superior Court.
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February 21, 2014

Third Circuit Court of Appeals Addresses Legal Definition of “Employer” in Sexual Harassment Case

by Resnick Law Group, P.C.

A plaintiff could not maintain a sexual harassment complaint because the defendant was not her employer under state or federal law, according to a recent appellate court ruling. Plaso v. IJKG, LLC, No. 13-2565, slip op. (3rd Cir., Jan. 21, 2014). The plaintiff worked at the defendant’s business location, and the sexual harassment forming the basis of her complaint allegedly took place there. Her salary and the authority to hire or fire her, however, originated with another company. Although the court ruled against the plaintiff, she was able to settle claims with the alleged harasser and the company that employed both of them. The case offers useful guidance for New Jersey workers considering a claim sexual harassment or other forms of employment discrimination
The U.S. Supreme Court developed a three-part test to determine whether a party is an “employer” in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), and the Third Circuit has adopted the test for Title VII and other laws. It identifies the party that has “the right to control the manner and means” of the plaintiff’s employment, id. at 323-24, through three “indicia of control”: (1) who pays the worker’s salary, (2) who has the right to hire and fire the worker, and (3) who controls the worker’s “daily employment activity.” Plaso, slip op. at 9, quoting Covington v. Intern. Ass’n of Approved Basketball, 710 F.3d 114, 119 (3rd Cir. 2013).

The plaintiff began working for a consulting firm based in Ohio, Healthcare MCR, in early 2008. Her direct supervisor, R. Brent Martin, assigned her to work at the office of a client, Bayonne Medical Center (BMC) in Bayonne, New Jersey. Martin also worked there as Chief Restructuring Officer. The plaintiff worked at BMC five days a week; had her own office, along with telephone and email account; and interacted with BMC staff on a daily basis. Martin was usually working at BMC, and the plaintiff went through him for most employment concerns, such as work hours and leave. Her paycheck came from Healthcare.
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February 6, 2014

Pregnancy Now a Protected Class Under New Jersey’s Law Against Discrimination

by Resnick Law Group, P.C.

New Jersey Governor Chris Christie signed a bill into law in late January 2014 amending the New Jersey Law Against Discrimination (LAD) to include pregnancy as a protected class. The LAD has long protected employees from discrimination based on sex and disability, but it did not include pregnancy as a distinct class until now. New Jersey’s law, in addition to prohibiting discrimination and retaliation based on pregnancy or childbirth, identifies specific examples of reasonable accommodations employers should provide.

Strong protections for pregnant employees are critically important, as many women find it necessary to continue working well into their pregnancies. According to a report issued last year by the National Women’s Law Center, about two-thirds of first-time mothers worked during their pregnancies between 2006 and 2008, compared to only forty-four percent between 1961 and 1965. Of the women who worked while pregnant from 2006 to 2008, eighty-eight percent of them worked through their last two months of pregnancy, and eighty-two percent worked into the last month. Their income is also generally indispensable, as the study found that women are the primary “breadwinners” in forty-one percent of families, with more women in that role among lower-income households. The laws relating to pregnancy and employment, however, are still changing to reflect these realities.

Federal law, under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, also protects against discrimination based on pregnancy. The PDA added pregnancy as a distinct type of gender discrimination. It addresses discrimination and retaliation for covered employers, but not reasonable accommodations. The Americans with Disabilities Act (ADA) applies to pregnancy discrimination, although neither the courts nor the Equal Employment Opportunity Commission (EEOC) have defined employers’ obligations to accommodate employees under this law. Only eight states, including New Jersey, specifically include pregnancy as a protected class in their anti-discrimination laws. Some cities, like New York, include it in their anti-discrimination ordinances.
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January 15, 2014

Hudson County Jury Awards Former Public Safety Director $440,000 in Back Pay for Unlawful Race Discrimination

by Resnick Law Group, P.C.

An eight-member Hudson County jury has awarded a former City of Hoboken employee $440,000 in back wages for discrimination. In the lawsuit, former Public Safety Director Angel Alicea, who is Hispanic, alleged that he resigned from his position in 2011 after he suffered race discrimination and retaliation at the Hoboken Police Department. Alicea also claims Mayor Dawn Zimmer intentionally underpaid him, sought to replace him with a white man, and attempted to destroy his reputation.

When he resigned, Alicea was reportedly earning $27,000 per year in his part-time role with the city. He was later replaced by a full-time employee who earns $110,000 annually. At trial, Mayor Zimmer testified that Alicea was asked to resign after she discovered the former Public Safety Director lied to her about meeting with a key witness in a high profile sting operation. According to Alicea, the meeting Mayor Zimmer described never took place. Alicea stated he believes he was asked to resign under threat of being fired for disclosing alleged improprieties related to steroid use and drug testing within the department.

Although a majority of jurors found the City of Hoboken discriminated against Alicea, their verdict stated Mayor Zimmer did not engage in illegal race discrimination against the man. The next day, a separate hearing regarding punitive damages was cancelled after the parties reached a settlement agreement. That agreement is now pending approval before the Hoboken City Council.
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December 5, 2013

New Jersey Law Protects Workers from Discrimination Prohibited by Proposed Federal Employment Non-Discrimination Act

by Resnick Law Group, P.C.

The United States Senate has passed a bill designed to protect gay, lesbian, bisexual, and transgender workers across the country from discrimination. The Employment Non-Discrimination Act would prohibit employers with at least 15 workers from engaging in discrimination against an employee based upon his or her sexual orientation or gender identity. The bill also provides an exemption for religious institutions and the military. The measure was passed after two Independent, 10 Republican, and 52 Democratic Senators voted in favor of the bill. The proposed law will now move on to the House of Representatives for consideration.

Despite the bill’s bipartisan success in the Senate, House Speaker John Boehner reportedly opposes the workplace rights bill. A spokesperson for House Majority Leader Eric Cantor, Rory Cooper, stated the proposed measure is not currently on the legislative schedule. President Obama stated it is his hope that the bill will be considered, passed, and sent to his desk for signature quickly. It is unclear, however, whether the measure will be ever considered by the House.

Although a number of state anti-discrimination laws are in place, there is currently no federal law that protects gay, lesbian, bisexual, and transgender workers in the U.S. from discrimination. The landmark Employment Non-Discrimination Act was first introduced to the Congress in 1994. Since then, the measure was re-introduced each year with varied success. In 1996, the proposed law failed in the Senate by only one vote. In 2007, the measure was passed by the House of Representatives but not the Senate.
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December 3, 2013

Exxon to Begin Offering Same-Sex Spousal Benefits in New Jersey and Across the U.S. Amid Allegations of Sexual Orientation Discrimination

by Resnick Law Group, P.C.

In September, Exxon Mobil Corporation announced that the company would begin offering benefits to the legally married same-sex spouses of employees in the United States. According to a spokesperson for the company, Alan Jeffers, the change was made in response to official guidance that was issued by the nation’s Department of Labor after the Supreme Court struck down the federal Defense of Marriage Act in June. Jeffers stated that Exxon has not changed its criteria for benefits eligibility. He added that the oil and gas company offers same-sex spousal benefits in at least 30 nations consistent with local legal requirements.

Despite the change, Exxon has been accused of failing to adequately protect gay workers and applicants in the past. This year, the Human Rights Campaign ranked the company dead last when compared with other corporate gay, lesbian, and transgender employee anti-discrimination policies. In addition, a lawsuit alleging sexual orientation discrimination against a gay job applicant was recently filed against Exxon in the State of Illinois.

All current or potential employees in New Jersey who are members of a protected class are protected from workplace discrimination. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating based on race, religion, color, sex, or national origin. Additionally, New Jersey’s Law Against Discrimination (LAD) makes it unlawful for an employer to discriminate in any job-related action on the basis of any of the statute’s protected categories. LAD protected categories include sexual orientation, gender identity or expression, race, sex, pregnancy status, creed, color, national origin, nationality, ancestry, age, marital status, mental or physical disability, and others.
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December 3, 2013

Jury Verdict Sends Message to Employers that Disability Discrimination is Unacceptable in New Jersey and Across U.S.

by Resnick Law Group, P.C.

A federal jury has ruled in favor of a 25-year-old mentally disabled man who was discriminated against by his employer in Texas. According to a lawsuit filed against the Kroger chain of grocery stores, the mentally challenged former employee worked at one of the company’s stores without incident for four years before he was transferred to a grocery store in Plano. The man claims a store manager began verbally abusing him and calling him names about one-week after the transfer. The 25-year-old also alleges that he was regularly asked to perform duties by himself that normally required at least two people. Approximately one year after he was transferred, the disabled man filed a discrimination and harassment lawsuit against the company. The young man also claims he was fired as a direct result of filing the legal complaint.

After four days of testimony regarding the alleged harassment endured by the mentally challenged 25-year-old, a jury issued an award of $450,000 in damages. His father stated he was happy with the verdict because it sends a message to employers that discrimination against the disabled will not be tolerated. A representative for Dallas-based Kroger said the company is currently considering whether to appeal the jury’s verdict.

Unfortunately, not all disability discrimination is immediately so obvious. Sadly, many employers in New Jersey and elsewhere choose to unlawfully discriminate against or harass workers who suffer from a disability due to biased thinking. Disabled persons in New York and New Jersey have a right to expect that their employers will provide them with reasonable accommodations that allow them to perform their essential job duties. If a disability does not physically prevent a worker from performing his or her job requirements, an employer has no legal basis on which to discriminate. If your request for reasonable accommodations at work due to a disability was denied, your rights may have been violated.
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November 1, 2013

New Law Protects Social Media Account Privacy for New Jersey Workers and Job Applicants

by Resnick Law Group, P.C.

Increasingly, Americans are utilizing social media accounts like Facebook, Twitter, LinkedIn, Google+, and more both on and off the job. In recent years, a growing number of employers have reportedly asked workers and job applicants for access to their personal social media accounts as a condition of employment. In response to this practice, Governor Chris Christie recently signed into law a bill that prohibits New Jersey employers from requesting access to the personal social media accounts of workers or job candidates.

Companies who violate the new social media law will be subject to a $1,000 fine for the first offense and a $2,500 fine for each additional offense. The measure also allows employees and applicants the option to seek financial compensation for lost earnings from an employer who violates the law. Additionally, employers may not require a job candidate to waive any of the protections of the law as a condition of hiring, and they may not retaliate against a worker for exercising any rights guaranteed by the legislation.

The measure, which goes into effect on December 1st, does not apply to employer policies related to use of company-issued electronic devices such as laptops and smartphones. Also, employers are not prohibited from viewing employee or candidate information that is generally available to the public. State and local law enforcement agencies are not required to adhere to the provisions of the new law.
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