Gender Discrimination

Non-Disparagement Clause Cannot Prevent Employee From Discussing Discrimination

May 7, 2024 | by Jonathan I. Nirenberg

Today, the New Jersey Supreme Court ruled that the New Jersey Law Against Discrimination (“LAD”) prohibits non-disparagement agreements that have the impact of preventing an employee from discussing the facts of their discrimination, harassment or retaliation claim.

Non-disparagement clauses are very common in settlement agreements in employment law cases. Typically, they prevent the employee from saying anything negative about their former employer.

The case interpreted a 2019 amendment to the LAD that was passed in response to the #MeToo movement. Specifically, the legislature amended the LAD to deem that any provision in a settlement agreement that “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment . . . shall be deemed against public policy and unenforceable.”

Discriminatory Job Transfer Can be Actionable Without Significant Harm

April 24, 2024 | by Jonathan I. Nirenberg

The United States Supreme Court recently ruled that an employee who brings a lawsuit alleging she was transferred to another position for a discriminatory reason does not have to prove the transfer caused her significant harm.

Jatonya Clayborn Muldrow is a police sergeant in the St. Louis Police Department. She served as a plainclothes officer in the Department’s specialized Intelligence Division. In that position, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and was the head of the Gun Crimes Unit. As part of her position, she also was a Task Force Officer with the FBI, which gave her FBI credentials, an unmarked vehicle that she took home, and the right to conduct investigations outside of St. Louis.

After a new Intelligence Division commander took over the Division, he decided to transfer Sergeant Muldrow out of the unit so he could replace her with a male Sergeant who he considered a better fit for the unit’s “very dangerous” work. As a result, Sergeant Muldrow was reassigned to a uniformed position in its Fifth District.

Gerber Must Bring Witness to New Jersey to Testify in Discrimination Lawsuit

January 8, 2024 | by Jonathan I. Nirenberg

A recent decision from the New Jersey Appellate Division affirms a trial court’s order requiring Gerber Products Company to bring a witness from Switzerland to New Jersey, at Gerber’s expense, to testify at a deposition in a discrimination lawsuit. A deposition is a formal interview under oath used to obtain testimony from witnesses in lawsuits.

Denise Willson is a former Vice President of Medical Sales North America for Nestlé Infant Nutrition. Ms. Willson sued Gerber Products Company, Nestlé Healthcare Nutrition, Inc., Nestlé Holdings, Inc., and Gerber’s President and CEO, William Partyka, alleging they discriminated against her because of her age and gender. More specifically, she claims they fostered a “boys club” culture, paid her less than her younger male peers, denied her a promotion to the position of general manager, and ultimately fired her in retaliation for her complaints about the discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

As part of her lawsuit, Ms. Willson alleges she spoke to Mr. Partyka’s supervisor, Alexandre Costa, about the retaliatory termination, gender discrimination and Gerber’s failure to promote her. When Ms. Willson’s lawyers sought to take Mr. Costa’s deposition, the defendants objected. They argued that Mr. Costa lives in Switzerland, claims his meeting with Ms. Wilsson was about sales rather than her allegations of discrimination and retaliation, denies he was involved in the decision to terminate her employment or has any other information pertinent to her case, and that requiring him to come to New Jersey for his deposition supposedly would “create a tremendous burden on [his] business.” The defendants also argued that neither Mr. Costa nor his employer, Nestlé Enterprises S.A., is a party to the lawsuit.

Employers Can be Liable for Employment Decision Tainted by Subordinate’s Discrimination

January 5, 2022 | by Jonathan I. Nirenberg

The New Jersey Supreme Court recently recognized that an employer can be held liable for discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) based on an employment decision that was influenced by a subordinate’s discriminatory animus, whether or not the subordinate intended to get the employee fired.

Michele Meade was the Township Manager for Livingston Township. She was involved in disciplining Police Chief Craig Handschuch and Police Sergeant Kenneth Hanna for their failure to alert the Livingston Community Center about training exercises being conducted in the Center’s parking lot by the Emergency Services Unit (“ESU”). As a result, when someone spotted a man wearing camouflage and carrying a rifle bag in the parking lot, the Community Center locked down three preschool classes, and the Police Department dispatched two detectives to the scene.

Following the incident, Sergeant Hanna filed a criminal complaint against Ms. Meade, claiming she violated the law by using “unreasonably loud and offensive coarse or abusive language” when she publicly addressed him about the incident, including by asking him “what kind of f—ing operation are you running here?” Sgt. Hanna filed a second criminal complaint in which he alleged Ms. Meade had “purposely com[e] into physical contact with officers and civilians in an attempt to obstruct and stop an authorized ESU training exercise.” Ms. Meade eventually was acquitted of both charges.

New Jersey Law Against Discrimination Protects Breastfeeding

January 18, 2018 | by Jonathan I. Nirenberg

Last week, the New Jersey Law Against Discrimination (“LAD”) was expanded to prohibit discrimination and harassment on the basis of breastfeeding and to require employers to provide certain reasonable accommodations for nursing.

The LAD is New Jersey’s anti-discrimination law. It prohibits discrimination and harassment based on age, color, disability, gender (sex), marital status, national origin, pregnancy, race, religion, sexual orientation, veteran or military status.

On January 8, 2018, Governor Christie signed into law an amendment to the LAD to include breastfeeding as a new legally-protected category. As a result, now employers, unions, landlords, real estate agents, banks, and places of public accommodations, among others, cannot discriminate against women because they are breastfeeding.

NYC Bans Salary Inquires from Job Applicants

May 9, 2017 | by Jonathan I. Nirenberg

On May 4, 2017, New York City Mayor Bill DeBlasio signed into law an amendment to the New York City Human Rights Law (“NYCHRL”). Under this new law, which is intended to reduce pay discrimination, New York City employers cannot ask or say anything to job applicants or the applicant’s current or former employers to try to learn about the applicant’s salary history. However, they are permitted to tell job applicants about the anticipated salary or salary range for the position.

The new law also prohibits New York City employers and employment agencies from relying on a job applicant’s salary history when they make decisions about salary, benefits or other compensation during the hiring process. That expressly includes prohibiting using such information when negotiation an employment contract with a new employee. However, the prohibition does not apply to: (1) job transfers and promotions within the same employer; (2) instances where there is another federal, state or local law that specifically permits or requires salary history to be disclosed or verified to determine an employee’s compensation; or (3) public employees whose salary, benefits or compensation is determined by a collective bargaining.

In addition, this amendment to the NYCHRL prohibits employers and employment agencies from searching public records to try to find out about a job applicant’s salary history. But they can obtain background checks on job candidates, even if the background check includes salary history information, as long as they do not use that information when making decisions about salary, benefits or compensation during the hiring process.

Court Finds No Gender Discrimination in Weight Requirements for “Borgata Babes”

October 7, 2015 | by Jonathan I. Nirenberg

A recent decision from the New Jersey Appellate Division holds that the Borgata Casino Hotel & Spa’s did not violate the New Jersey Law Against Discrimination (“LAD”) by requiring certain employees not to gain too much weight.

The Marina District Development Company, LLC, better known as the Borgata Casino Hotel & Spa, has a program called “Borgata Babes.” Under it, the Atlantic City Casino hires attractive men and women to work wearing costumes. The Casino says that being a Borgata Babe requires a “certain appearance to portray a certain image to the public.” It compares the job with being a professional cheerleaders or model.

For instance, the Casino requires female Borgata Babes to have a “natural hourglass shape.” It also prohibits Borgata Babes from increasing their weight by more than 7% over their weight when they were hired, with exceptions for medical reasons and pregnancy. Its policy is to suspend employees who exceed this requirement to give them opportunity to lose weight, and to fire them if they fail to do so.

Employers Can Be Held Liable For Discrimination Even if Decision-Maker Has No Bias

August 1, 2013 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently recognized that a company cannot escape liability for discrimination by having someone else make the final termination decision. The case was filed by Tina Shipe, an employee who worked for several different Shop Rite supermarkets over 17 years. Ms. Shipe was the only female meat cutter who worked for her employer, Saker Shoprites, Inc.

In January 2008, Saker fired Ms. Shipe. Saker claims Ms. Shipe became extremely angry and cursed loudly enough that other employees and customers could hear her after her department manager, Chris Antimary, accused her of violating several store policies. Based on information he received from Mr. Antimary, the company’s senior vice president of human resources, Kevin Maroney, made the decision to fire Ms. Shipe.

In contrast, Ms. Shipe testified that Mr. Antimary treated her poorly from the first day she began working in his store. Mr. Antimary then falsely accused her of violating several store policies in an attempt to set her up to be fired. Ms. Shipe claims that although she was upset by the false accusations, she never cursed or raised her voice. Rather, Mr. Antimary confronted her, demanded that she admit she violated the store’s policies and got in her face in a way suggesting he wanted to fight her. Ms. Shipe was extremely upset by his behavior, and as a result stayed in the store bathroom for approximately 10 minutes while she composed herself and tried to stop crying.

Ms. Shipe sued, alleging gender discrimination in violation of the New Jersey Law Against Discrimination (LAD). At her trial, the jury found in her favor and awarded her $198,894 in past economic losses (back pay), $486,200 in future economic losses (front pay) and $145,860 in emotional distress damages. The judge subsequently awarded her more than $67,000 in attorney’s fees and costs.

The employer appealed, asking the Appellate Division to reverse the jury’s verdict. It argued there was not enough evidence to support the jury’s conclusion that it fired Ms. Saker because she is a woman, rather than because she was insubordinate after Mr. Antimary disciplined her. However, in Shipe v. Saker Shoprites, Inc. the court found there was enough evidence for the jury to conclude the meeting was a set-up to falsely discipline Ms. Shipe because of her gender, and that her testimony was enough to dispute the company’s claim it fired her for supposedly using profanity after the meeting.

Saker also argued there was no evidence that Kevin Maroney, the Vice President of Human Resources who made the decision to fire Ms. Shipe, had any discriminatory bias. In fact, Ms. Shipe did not even claim he discriminated against her.

However, the Appellate Division rejected this argument because Mr. Maroney relied on the information he received from Mr. Antimary, and the jury found that information was discriminatory. The court explained that if this was not legally actionable, companies could avoid responsibility for discrimination by having someone who does not know the employee make final termination (and other disciplinary) decisions based on discriminatory information. The court therefore concluded that although there was no evidence Mr. Maroney discriminated against Ms. Shipe, there was enough evidence to support the jury’s conclusion that Saker fired her because she is a woman.

Unfortunately, that is not the end of the story. Next week I will discuss the reason why the Appellate Division still reversed Ms. Shipe’s jury verdict, and why I think it was a mistake for it to have done so.

Public Employees Can Pursue First Amendment Claim if Harmed by Employer’s Discrimination Against Coworker

March 26, 2013 | by Jonathan I. Nirenberg

Last week, I discussed Montone v. City of Jersey City, a case that ruled Police Sergeant Valerie Montone can proceed with her political affiliation case against the Jersey City Police Department. In the same opinion the Third Circuit ruled that eight other police sergeants can continue with their claim that Jersey City failed to promote them because it was discriminating against Montone.

The other eight Sergeants were on the same promotional list as Montone. None of them were promoted because Jersey City stopped promoting any sergeants to lieutenant, allegedly because Jersey City did not want to promote Montone. In other words, they claim they were collateral damage in Jersey City’s efforts to discriminate against Montone for exercising her First Amendment right to political affiliation.

The Third Circuit ruled that employees can sue for retaliation in violation of the First Amendment even if the retaliation was based on someone else exercising his or her First Amendment rights. It relied on a previous Third Circuit case which recognizes that indirect victims of gender discrimination can sue for discrimination under Title VII if they were treated worse for reasons that “trace back” to unlawful discrimination. In that case, male employees were permitted to pursue a gender discrimination claim in which they claimed their employer refused to hire them from a “priority list” because the company did not want to hire the women on the list. The Third Circuit also relied on a United States Supreme Court opinion recognizing an employee can bring a retaliation claim based on a coworker’s legally protected activity (in that case, retaliation against an employee’s fiancée because the employee filed a claim of gender discrimination with the Equal Employment Opportunity Commission) if the retaliatory action would dissuade a reasonable person from engaging in the protected activity. The Third Circuit explained that without this type of protection, municipal employees might not exercise their rights to express their political beliefs, or might change their political association to avoid retaliation.

Ultimately, the Third Circuit ruled that the eight sergeants can proceed with their civil rights case. It found there is a genuine dispute whether Jersey City failed to promote them because Montone exercised her right of political affiliation. For example, it found disputes regarding whether there really was a shortage of lieutenants in the police department, whether the Police Chief had the authority to make promotions, and why there were no promotions to lieutenant for three years. It therefore concluded that a jury must decide whether Jersey City retaliated against them.

Employee Claims Company Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave

December 15, 2012 | by Jonathan I. Nirenberg

A New Jersey judge recently issued a noteworthy decision in a gender and pregnancy discrimination case, Colicchio v. Merck & Co., Inc. The fact scenario is fairly common. Kerri Colicchio worked for Merck & Co., Inc. for approximately a decade. She alleges the company passed her over for a promotion shortly before she was scheduled to go on a maternity leave. She also claims the company took away many of her job duties when she returned from that leave, and eventually used her reduced role as a justification to fire her as part of a “business reorganization.”

Merck asked the judge to dismiss her gender discrimination and pregnancy discrimination claims. It argued that since there was nearly a year between Ms. Colicchio’s maternity leave and the elimination of her position, she could not prove the company discriminated against her. The judge was not persuaded. He found Ms. Colicchio offered evidence that her supervisors made discriminatory statements right before her pregnancy leave, decided to fire her while she on that leave, and then carried out its decision by gradually taking away her job duties when she returned to work so it ultimately could justify eliminating her position.

Ms. Colicchio’s evidence of discrimination includes the fact that her boss told her she would have been promoted to the position of Interim Vice President of Global OE if she had not been scheduled to take a maternity leave. The judge recognized this was evidence the company was using her maternity leave as a negative factor in employment decisions. Ms. Colicchio also testified that her boss tried to discourage her from returning to work by telling her “babies need their mamas.” The court found this was further evidence of Merck’s discriminatory motive. The judge concluded that the evidence supports the conclusion that Merck removed Ms. Colicchio’s job duties as part of a plan to set her up to be fired.

The judge also allowed Ms. Colicchio to proceed to a trial on her claim that Merck interfered with her right to take a leave under the Family & Medical Leave Act (FMLA) and the New Jersey Family Leave Act (FLA). Specifically, he recognized that a jury could find the company denied her the right to return to her position, or an equivalent one, based on the evidence that Merck reduced her job duties after she returned from her maternity leave.