Discrimination

Governor Christie Signs Two New Employment Laws

September 16, 2013 | by Jonathan I. Nirenberg

On August 30, 2013, Governor Christopher Christie signed two new employment laws. The first law expands the New Jersey Law Against Discrimination (LAD) to protect employees who are trying to obtain information to support a potential claim of pay discrimination. The second new law prohibits employers from asking employees or job candidates to provide their private social media information to the company.

Whistleblower Protection for Employees Providing Information About Pay Discrimination

The first new law amends the LAD to prohibit employers from retaliating against employees because they ask a current or former co-worker about an employee’s “job title, occupational category, and rate of compensation, including benefits.” It also protects employees who ask about another’s employee’s “gender, race, ethnicity, military status, or national origin.” These new whistleblower protections apply only if the information or question is intended to help with an investigation of potential discrimination regarding “pay, compensation, bonuses, other compensation, or benefits.” However, the statute makes it clear it is not intended to require anyone to disclose this information about him or herself or another employee. This amendment to the LAD went into effect immediately.

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.

Is Obesity a Disability Under New Jersey and New York Anti-Discrimination Laws?

July 16, 2013 | by Jonathan I. Nirenberg

Last month the American Medical Association (AMA) voted to designate obesity as a disease. More specifically, it adopted a resolution which states that obesity is a disease that leads to other conditions such as Type 2 diabetes and cardiovascular disease. As a result of the AMA’s decision, it is likely that more employees who are fired, demoted, harassed, or otherwise treated worse at their jobs because they are overweight will be legally protected by both New Jersey and New York law.

Both the New Jersey Law Against Discrimination (LAD) and the New York Human Rights Law (NYHRL) prohibit employers from discriminating against employees on the basis that they are disabled. The two laws define the term “disability” broadly to include both physical and mental disabilities. Neither statute limits its definition to severe or permanent medical conditions. In particular, the LAD defines disability to include any “physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders.” Similarly, the NYHRL’s definition to mean a physical or medical impairment “resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”

Over a decade ago, in Viscik v. Fowler Equipment Co., the New Jersey Supreme Court concluded that an employee’s obesity can be a disability under the LAD, but only if it is “morbid.” Obesity is considered “morbid” if it prevents you from engaging in normal activities. In Viscik, the Court found the employee who filed the lawsuit was disabled because her obesity caused her other medical conditions including arthritis, a heart condition, obstructive lung disease and knee problems that limited her ability to walk. The court concluded this met the LAD’s definition of a disability.

Likewise, in Delta Air Lines v. New York State Division of Human Rights, a 1997 case, the New York Court of Appeals ruled that simply being overweight is not a disability under the NYHRL. However, it distinguished another case in which the company’s doctor concluded the employee was unable to perform her job because she was “grossly obese,” a diagnosed medical condition that impaired her ability to work. Thus, like the New Jersey Supreme Court, in the past New York’s highest court required an individual’s obesity to cause an illness, impairment or limitation before it can be considered a disability under the NYHRL.

But at least arguably, today the analysis could be much simpler. Since the AMA has deemed obesity itself to be a disease, it seems to fit within the LAD’s definition of disability as long as being overweight can be considered a form of malformation or disfigurement. Likewise, it seems to fall within the NYHRL’s definition since it is a physical or medical condition resulting from an anatomical condition that can be demonstrated by medically accepted clinical techniques.

Of course, how much this change actually will impact disability discrimination law is an issue that eventually will be decided by the courts. The bottom line is that the AMA’s new resolution could help extend protection against disability discrimination to additional employees who previously were not legally protected.

Supreme Court Limits Definition of “Supervisor” Under Federal Anti-Discrimination Law

July 1, 2013 | by Jonathan I. Nirenberg

Last week, the United States Supreme Court adopted a narrow definition of who is a “supervisor” under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII is a federal law that prohibits discrimination based on race, color, national origin, sex or religion. The Court ruled that an employee has to have the authority to take tangible employment actions against another employee to be considered his or her supervisor. A tangible employment action is a significant job action such as hiring, firing, promoting, demoting, transferring or suspending an employee.

It is important to note that this narrower definition of supervisor probably does not apply under New Jersey or New York City law, and may not apply under New York law.

The definition of who is a supervisor under Title VII is significant because the Supreme Court has previously ruled that a different standard applies to determine when a company is liable for harassment committed by a supervisor than a coworker. Specifically, companies are strictly (directly) liable for a hostile work environment created by a supervisor if it results in an adverse employment action that has negative economic consequences, such as the employee being fired, demoted, or forced to quit. Alternatively, a company is vicariously (indirectly) liable for a supervisor’s harassment unless the company can prove (1) it made reasonable efforts to prevent and correct the harassment, such as having and enforcing an effective anti-harassment policy, and (2) the victim of the harassment unreasonably failed to take advantage of opportunities to prevent or correct the hostile work environment.

In contrast, an employer can be held liable for harassment by a coworker or subordinate under Title VII only if it was negligent in preventing the creation or continuation of a hostile work environment. In other words, the victim must prove the company “knew or reasonably should have known about the harassment but failed to take remedial action.” The Supreme Court explained that evidence of negligence can include the fact that an employer “did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.”

Maetta Vance, the employee in the case the Supreme Court decided, brought a claim of racial harassment and discrimination against her former employer, Ball State University. The University sought to dismiss the case, arguing it was not legally responsible for the alleged harassment because the person who committed it was not Ms. Vance’s supervisor. The lower courts both agreed.

Ms. Vance asked the Supreme Court to adopt the United States Equal Opportunity Commission (“EEOC”)’s broader definition of “supervisor,” which includes anyone who exercises significant control over the employee’s daily work. But, in Vance v. Ball State University, the Court rejected her position and ruled that generally only someone who has the authority to take an adverse employment action that has a negative economic consequence toward an employee can be considered a supervisor under Title VII. The Court also indicated that, under certain circumstances, an individual who does not officially have the authority to take an adverse employment action can be considered a supervisor if he/she has “substantial input” into those types of decisions in a way that indicates the employer delegated that power to him/her.

Since Ms. Vance admitted her harasser did not have the authority to fire, demote, or discipline her, the Supreme Court affirmed the dismissal of her case.

New Jersey Court Reverses Dismissal of Sexual Orientation Discrimination Case

May 7, 2013 | by Jonathan I. Nirenberg

Earlier this month the New Jersey Appellate Division permitted an employee to continue with his sexual orientation discrimination claim against his former employer, finding there is enough evidence to support his claim.

Ronald Savoie, who happens to be gay, had a distinguished career as a teacher at The Lawrenceville School for more than two decades. He lived in a house owned by the school with his partner, Richard Bierman. In 2002, eight school buildings and grounds employees entered Mr. Savoie’s basement to repair a broken water main outside his house. In the basement, they saw some sort of sexual apparatus hanging from chains on the ceiling. Some of the employees also described seeing other items in the basement including a computer, a tripod without a camera, and videotapes.

A year later, when the school was replacing the condensing units and water heaters in the houses on Mr. Savoie’s street, several of the employees who had been in his basement the year before indicated they were uncomfortable returning to his house. When they described to their supervisor what they had seen in Mr. Savoie’s basement the year before, they listed additional items including a video camera, a television, a bed with mirrors, latex gloves, and diapers. Their boss repeated this information to the school’s Dean of Faculty, its Associate Head Master, and its Chief Financial Officer (CFO).

The Dean then met with Mr. Savoie, gave him a pre-written resignation letter, and told him he would be fired unless he agreed to resign. According to Mr. Savoie, the Dean accused him of transmitting sexually explicit images over the Internet, and indicated he could not trust him with students as a result. Although Mr. Savoie signed the resignation letter, he attempted to rescind it the next day. The school rejected his attempt to withdraw his resignation.

Mr. Savoie then sued the school and several of its employees, claiming they fired him because of his sexual orientation, in violation of the New Jersey Law Against Discrimination (LAD). In response, the school claimed it asked Ms. Savoie to resign because it believed he was sending sexually explicit pictures of activities taking place in his basement over the Internet, in violation of the school’s standards of personal and professional behavior, which it claims jeopardized its reputation. The trial court eventually dismissed Mr. Savoie’s case, concluding that even if he did not actually send sexually explicit materials over the Internet, the school reasonably believed he had done so and legitimately fired him as a result.

However, in Savoie v. Lawrenceville School, the Appellate Division reversed. It ruled that although a jury could reach the same conclusion as the trial judge, it also could determine that the school would not have reacted the same way if Mr. Savoie was heterosexual. The appellate court relied on the fact that (1) the school relied on the secondhand information from the supervisor of the employees who were in Mr. Savoie’s basement instead of conducting a proper investigation; (2) Mr. Savoie disputes the school’s claim that he admitted sending sexually explicit images over the Internet; (3) the school’s Associate Head Master made a disparaging comment about Bierman’s lifestyle, thereby implicitly criticizing Mr. Savoie’s lifestyle; and (4) the school looked the other way when a high ranking administrator resumed an adulterous affair even after he had been warned the affair violated the school’s policy regarding personal and professional behavior and was grounds for termination. Accordingly, the Appellate Division sent Mr. Savoie’s case back to the trial court for a trial.

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.

Third Circuit Finds No Evidence of Discrimination Necessary to Prove Discrimination Case

February 28, 2013 | by Jonathan I. Nirenberg

Last month, the Third Circuit Court of Appeals recognized that an employee does not need to have any evidence of discrimination before she can present her case to a jury. The Third Circuit is the federal court that handles appeals from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

The employee who brought the case, Mary Burton, worked for Teleflex Inc. as a Vice President of New Business Development. On June 3, 2008 she got into a disagreement with her supervisor, Edward Boarini. Mr. Boarini claims Ms. Burton resigned during the meeting. In contrast, Ms. Burton claims she mentioned the possibility of resigning, but did not actually resign. At the time, Ms. Burton was 68 years old.

According to Ms. Burton, she did not report to work the next two days because she was upset about the meeting. She then took a preplanned vacation. On the day she was scheduled to return to work, Teleflex sent her a letter indicating it was accepting her resignation.

After her lawyer unsuccessfully attempted to negotiate a severance package, Ms. Burton filed a lawsuit claiming the company’s decision to fire her was age discrimination in violation of the Age Discrimination in Employment Act (ADEA), and gender discrimination in violation of Title VII of the Civil Rights Act of 1964. But the District Court dismissed Ms. Burton’s case. It found she voluntarily resigned, and therefore could not pursue a wrongful termination claim. It also found that even if she did not intend to resign, there was no evidence the company fired her because of her age or gender, rather than because it believed she had resigned.

But on appeal, the Third Circuit reversed. It found that since there is a factual dispute whether Ms. Burton actually resigned, a jury needs to decide whose version of the events is true. It explained that a jury can conclude Ms. Burton was fired based on her testimony that she never said she was resigning, as well as the fact that she never tendered a resignation letter, never told anyone she was resigning, and the company merely took Mr. Boarini’s word that she had resigned without confirming it with her.

The Third Circuit further ruled that a jury can find Teleflex’s decision to fire Ms. Burton because of her age or gender even though there is no evidence of discrimination. It explained that one way an employee can prove her case is by pointing out “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s explanation for terminating her. In essence, it ruled that a jury can find Teleflex lied when it claimed it believed Ms. Burton had resigned, and can conclude the reason the company lied was to cover up age or gender discrimination. The Third Circuit’s opinion in Burton v. Teleflex Inc. is published, meaning it is a binding legal precedent.

Court Rules New Jersey Law Against Discrimination Does Not Apply to New Jersey Resident Who Worked in Pennsylvania

January 28, 2013 | by Jonathan I. Nirenberg

A federal judge in New Jersey recently dismissed an employee’s discrimination lawsuit on the basis that the New Jersey Law Against Discrimination (NJLAD) does not apply to New Jersey residents who work outside of New Jersey. The employee, Blaise A. McGovern, is a resident of New Jersey. He worked for Southwest Airlines as a ramp supervisor at Philadelphia International Airport. He claims Southwest subjected him to abusive, harassing, and homophobic conduct. After Mr. McGovern reported the harassment to his supervisors, he received harassing telephone calls and text messages. After he filed a written harassment complaint, Southwest Airlines fired him.

Mr. McGovern sued Southwest under the NJLAD, alleging harassment and wrongful termination. Although the judge’s opinion in McGovern v. Southwest Airlines does not say it, Mr. McGovern presumably claimed Southwest engaged in sexual orientation discrimination.

Southwest asked the court to dismiss Mr. McGovern’s case. It argued that the NJLAD does not apply because Mr. McGovern worked for it exclusively in Pennsylvania. In response, Mr. McGovern argued that even though he did not perform any work for Southwest in New Jersey, the NJLAD still applies since some of the harassment occurred in New Jersey. For example, he received many of the harassing telephone calls and text messages while he was at home in New Jersey.

In granting Southwester’s motion to dismiss the case, the judge explained that under New Jersey law a judge normally has to apply the employment laws of the state where the employee worked. He explained this rule protects companies from the “potential unfairness of having to comply with several different” sets of employment laws simply because their employees happen to live in different states. However, the judge noted there are exceptions to this general rule for employees who have “non-trivial” job duties in New Jersey. However, merely performing a small portion of your work in New Jersey is not enough for the NJLAD to apply. Since Mr. McGovern had not performed any work for Southwest in New Jersey, the judge rule that the NJLAD does not apply to him.

As discussed in a previous article, New York has a very different rule to determine whether the New York Human Rights Law (NYHRL) applies to an employee who works outside of New York. Specifically, the NYHRL applies to employees who live in New York or when discrimination had an impact in New York even if the employee never worked in New York. As a result, the NYHRL applies to a much broader group of employees than the NJLAD.

New Jersey Court Reverses Million Dollar Award in Disability Discrimination Case, Finding Jury Relied on Inadmissible Hearsay

January 7, 2013 | by Jonathan I. Nirenberg

Last month, New Jersey’s Appellate Division reversed a verdict of over one million dollars in a disability discrimination and retaliation case because the only evidence supporting the claim was inadmissible hearsay. Hearsay is basically when you try to prove something is true based on the fact that someone else said it was true outside of the courtroom. Hearsay generally is not admissible at a trial because it is considered untrustworthy. However, there are many exceptions to that rule.

The case was brought by Anthony Pace, who was a security guard for the Elizabeth Board of Education for more than 15 years. In 2003, Mr. Pace suffered a knee injury at work, and filed a worker’s compensation claim. In 2006, the Board decided not to renew Mr. Pace’s contract as part of a reduction-in-force. Mr. Pace then sued, claiming the Board’s decision to lay him off was both disability discrimination and an act of retaliation because he filed a workers’ compensation claim. A jury agreed with Mr. Pace and awarded him $147,630 for past lost wages, $427,370 for future lost wages, and $250,000 in punitive damages. He also was awarded $237,843 in attorney’s fees and $7,708.84 to reimburse him for his litigation costs, bringing his total judgment to more than a million dollars.

The primary evidence to support Mr. Pace’s claims were two witnesses who testified that a former member of the Board, Carol Cascio, told them the Board was trying to eliminate employees who had brought worker’s compensation claims against it during the reduction-in-force. Both of the witnesses indicated that Ms. Cascio made those statements after she had left the Board.

However, in Pace v. Elizabeth Board of Education, the Appellate Division ruled that this evidence was inadmissible hearsay. In doing so, the court rejected numerous exceptions to the hearsay rule. For example, it found an exception for statements made by the opposing party did not apply since Mr. Pace did not sue Ms. Cascio personally so she could not be an opposing party. Similarly, it found an exception for statements by agents, employees and representatives of an opposing party did not apply because Ms. Cascio was no longer an employee of the Board when she allegedly made the statements. It also rejected an exception for statements that are against the speaker’s interests because Ms. Cascio did not say anything that personally implicated herself in any wrongdoing. Likewise, it rejected other exceptions to the hearsay rule because there was no evidence the Board had authorized Ms. Cascio’s statement, and no evidence it adopted her statement as its own. Ultimately, having found the only evidence of discrimination and retaliation was inadmissible hearsay, the Appellate Division overturned the jury’s verdict.

Decision to Seek Outside Job Candidate Isn’t Legitimate Reason Not to Promote Employee

December 22, 2012 | by Jonathan I. Nirenberg

Last week I discussed Colicchio v. Merck & Co., Inc., a case involving an employee who claims her employer Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave. The employee in that case, Kerri Colicchio, also claims her employer failed to promote her because of her gender and pregnancy, and retaliated against her for objecting to violations of the New Jersey Law Against Discrimination (LAD).

The judge allowed Ms. Colicchio to proceed with her claim that the company failed to promote her to the position of Vice President of Global OE. Ms. Colicchio testified that her supervisor told her she was not being considered for that position on an interim basis expressly because she was about to go out on a maternity leave. The judge found this was not “smoking gun” evidence since the comment involved the interim position, and Ms. Colicchio was suing Merck for failing to offer her the job on a permanent basis. However, he found the comment showed the company used Ms. Colicchio’s pregnancy as an important negative factor in making employment decisions about her. In other words, it was evidence of pregnancy discrimination.

The judge also found Merck’s justification for its decision not to promote Ms. Colicchio was not a legitimate, non-discriminatory reason. Specifically, Merck claims it decided to consider only external job candidates for the position. The judge called this explanation “barely more than no reason at all,” since the company did not indicate why it decided not to consider internal candidates. This is noteworthy, since it potentially means Merck does not have a valid defense to Ms. Colicchio’s claim that it failed to promote her because of her gender and pregnancy.

However, the court dismissed Ms. Colicchio’s retaliation claim. It explained that to be protected by the LAD, an objection has to either expressly or implicitly indicate that the company treated an employee differently based on a legally protected category. For example, an employee who objects to race, age, or gender discrimination would be legally protected from retaliation under the LAD. However, when Ms. Colicchio made her internal complaints, she only indicated she was being treated unfairly, without stating or implying she believe the unfair treatment was due to her gender or pregnancy. As a result, the Judge ruled that Ms. Colicchio does not have a valid retaliation claim.