New Jersey Employment Lawyer Blog

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.

State Supreme Court Lowers Burden to Prove Retaliation Under New Jersey Law Against Discrimination

July 22, 2013 | by Jonathan I. Nirenberg

In addition to prohibiting employment discrimination and harassment based on race, gender, sex, disability and other specific protected categories, the New Jersey Law Against Discrimination (“LAD”) also prohibits companies from retaliating against employees who object about discrimination or harassment in the workplace. The New Jersey Supreme Court recently clarified that this protection applies to employees who object about sexually offensive conduct toward women even if no women were aware of the offensive conduct. In the process, the Court seems to have expanded the LAD’s protection against retaliation to protect employees irrespective of whether it was reasonable for them to believe the harassment or discrimination violated the law.

United Parcel Service, Inc. (UPS) demoted Michael Battaglia shortly after he objected that his supervisor, Wayne DeCraine, called female employees “c*nts,” referred to a particular woman as “that b*tch,” called another female employee “big t*ts,” expressed his desire to have sex with another female employee, referred to an employee named Regina as “Vagina,” and discussed pornographic websites he visited at home. He also reported the fact that Mr. DeCraine was involved in a sexual relationship with a female employee. What distinguishes Mr. Bataligia’s case from most other cases is Mr. DeCraine did not engage in this sexually offensive conduct in the presence of any women, so no women even arguably were subjected to a hostile work environment.

Two years ago, New Jersey’s Appellate Division ruled that Mr. Battaglia’s objections were not protected by the LAD’s anti-reprisal provision. It did so because Mr. DeCraine’s conduct was not unlawful sexual harassment since no woman heard his offensive language, the romantic relationship he was having with another female employee was consensual, and there was no suggestion any woman was fired, demoted, or experienced another adverse employment action because of her gender. It interpreted the LAD’s anti-retaliation provision to require evidence of actual discrimination or harassment.

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 Makes it Harder to Prove Retaliation Under Federal Law

July 8, 2013 | by Jonathan I. Nirenberg

Last week, in University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court ruled there is a higher burden for an employee to prove his or her employer retaliated than to prove it discriminated under Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employers from discriminating against their employees based on their race, color, religion, sex, or national origin. It also prohibits companies form retaliating against employees because they opposed, complained about, testified about, or otherwise pursued a claim of discrimination or harassment.

The Civil Rights Act of 1991 makes it clear that an employee can prove a Title VII discrimination claim if she proves her race, color, religion, sex, or national origin was a “motivating factor” in the employer’s decision to take a negative employment action toward her even if the company considered other lawful factors in making its decision. If an employee meets this requirement, the company still can avoid paying damages if it proves it would have made the same decision even without considering the illegal factor. The question in the Nassar case was whether the same standards apply to retaliation claims.

Several years ago, the Supreme Court ruled that since the Civil Rights Act of 1991 only amended Title VII, claims under the Age Discrimination in Employment Act (ADEA) do not follow the same motivating factor test. Instead, employees bringing cases under the ADEA have to prove the treatment they experienced would not have occurred but for their age. It is considered significantly more difficult to prove an employer’s decision would not have happened but for your age than it is to prove your age was a motivating factor in the company making that decision.

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.

Judge Reduces $3.5 Million Retaliation Verdict to $500,000

June 25, 2013 | by Jonathan I. Nirenberg

Earlier this year, New Jersey’s Appellate Division affirmed a trial court’s decision to reduce a firefighter’s emotional distress damages award from $3.5 million to $500,000. The case involved a retaliation claim brought by Firefighter Kevin Reilly against the Village of Ridgewood. Mr. Reilly had objected about numerous violations of fire safety and Occupational Safety & Health Act (“OSHA”) regulations. He claimed the fire department retaliated against him by, among other things, placing a negative memo in his personnel file, investigating an argument he had with another firefighter while off duty, and repeatedly skipping him for a promotion. He filed a lawsuit alleging Ridgewood retaliated against him in violation of New Jersey’s Conscientious Employee Protection Act (“CEPA”).

It is unclear why, but prior to the trial the judge dismissed Mr. Reilly’s claim for lost salary and benefits. At the trial, the jury found Ridgewood retaliated against Mr. Reilly, and awarded him $3.5 million for his emotional distress. On a post-trial motion, Ridgewood asked the judge to throw out the entire verdict, but the court found no basis to do so.

Ridgewood also asked the judge to reduce the amount of Mr. Reilly’s emotional damages award, claiming $3.5 million was so high it was a miscarriage of justice. The judge agreed, finding the award was so excessive that it was “shocking.” Although Mr. Reilly appealed, in Reilly v. Village of Ridgewood the Appellate Division affirmed.

As the trial court explained, in deciding whether to remit a jury verdict, a court is required to consider (1) the facts supporting the damages, (2) damage awards in similar cases, and (3) the judge’s “feel of the case,” to determine whether the damages were so “wide of the mark” to require a reduction.

With respect to the first factor, Mr. Reilly testified about the anxiety and depression he experienced but did not rely on any medical testimony. He explained he was a third generation firefighter whose career had been destroyed. He told the jury he no longer felt safe at his job because he could not trust his co-workers to back him up at a fire scene. He also indicated he was worried Ridgewood would fire him for any small error he might make.

With respect to the second factor, the judge reviewed numerous other employment law cases, and noted that none of them awarded close to $3.5 million for emotional distress. He discussed cases with emotional distress awards ranging between $125,000 and $1.5 million. He noted that the cases at the higher end of that range involved medical testimony regarding the employee’s pain and suffering, treatment for the emotional distress, physical symptoms, and/or other more serious manifestations of the emotional harm. He also noted that the cases at the lower end of the spectrum did not involve anything comparable to Mr. Reilly’s fear that his fellow firefighters would not back him up and that Ridgewood would fire him for any mistake he made.

With respect to the final factor, the judge described his observations about Mr. Reilly at the trial, including that he cried and showed emotion during his testimony, but seemed composed during the rest of the trial and did not otherwise demonstrate any behavior that suggested he was experiencing emotional distress.

When a judge concludes a jury’s verdict is so shocking that it must be reduced, he is required to replace it with “the highest figure that could be supported by the evidence.” After weighing all three factors, the trial judge determined that $500,000 was the highest award that could be supported by the evidence. Accordingly, he reduced Mr. Reilly’s emotional distress damages to $500,000, a very substantial award for an individual who did not have any medical testimony to support his emotional distress damages, but $3 million less than the jury had awarded.

New York City Human Rights Law Protects Poorly Performing Employees From Retaliation

June 19, 2013 | by Jonathan I. Nirenberg

Last week, I discussed a case which Clarifies How to Prove Sexual Harassment Under New York City Law. The same case also demonstrates how broad the New York City Human Rights Law (NYCHRL)’s protection is for employees who object about unlawful discrimination or harassment at work. It is a particularly noteworthy employment law decision because it recognizes that a company can violate the NYCHRL if it fires an employee whose job performance is extremely poor if there is evidence the company did not make the decision to fire her until after she objected about sexual harassment.
The NYCHRL prohibits employers from retaliating against anyone who opposes unlawful discrimination or harassment. It has been interpreted to protect a wide range of opposition to discrimination and harassment, including something as simple as expressing the opinion that certain treatment by a supervisor was improper or wrong. It also has been interpreted to prevent a wide range of retaliatory actions. In addition to prohibiting severe forms of retaliation such as firing, demoting, or suspending an employee, it also prohibits any other form of reprisal that is likely to deter someone from objecting to illegal discrimination in the future.

In Mihalik v. Credit Agricole Cheuvreux North America, Inc., Renee Mihalik claims her company’s Chief Executive Officer, Ian Peacock, retaliated against her after she rejected his sexual advance in December 2007. In particular, she told him his behavior was “offensive and shameful.” She claims Mr. Peacock subsequently berated her in front of her coworkers by saying she adds “nothing of value” to the company, has “no f–ing clue” about what she is doing, and is “pretty much useless.” She also claims Mr. Peacock stopped sitting next to her at the trading desk, and told the staff not to invite her to meetings. The Second Circuit Court of Appeals concluded that a jury could find Mr. Peacock took these demeaning actions toward Ms. Mihalik in response to her objection to his sexual overtures, and his behavior reasonably could deter Ms. Mihalik and/or other employees from coming forward with complaints about discrimination in the future.

Ms. Mihalik further claims Mr. Peacock retaliated against her by firing her. During a meeting in April 2008, Mr. Peacock told Ms. Mihalik that things were not working out with her. She responded by asking what was not working out, “me and you or me at the company?” The Court ruled that a jury could believe her question was a reference to her previous rejection of Mr. Peacock’s sexual advances, and as a result could find his decision to fire her was retaliatory.

Notably, the court reached this conclusion even though there was proof that Ms. Mihalik’s job performance was extremely poor. However, there also was evidence that Mr. Peacock had never spoken to her about her job performance before this meeting, Mr. Peacock admitted he had not decided to fire Ms. Mihalik before the meeting, and there was evidence he decided to fire her only after he became angry about her objection to his inappropriate behavior. Alternatively, the court found that a jury could conclude that Mr. Peacock had more than one reason for firing Ms. Mihalik — her poor performance and her objection to his sexual advances. Either way, it ruled there is enough evidence to support Ms. Mihalik’s claim, and her case should proceed to a trial.

Court Clarifies How to Prove Sexual Harassment Under New York City Law

June 12, 2013 | by Jonathan I. Nirenberg

Earlier this year, the United States Court of Appeals for the Second Circuit clarified how the New York City Human Rights Law (“NYCHRL”) applies to a sexual harassment claim. In the process, the court ruled that Renee Mihalik can proceed with her case against her former employer, Credit Agricole Cheuvreux North America, Inc.

Ms. Mihalik, a resident of Hoboken, New Jersey, worked for Cheuvreux in New York City. She claims she experienced sexual harassment from Cheuvreux’s Chief Executive Officer, Ian Peacock. More specifically, she alleged Mr. Peacock ran the office like a “boys’ club,” made sexually suggestive comments, and propositioned her for sex twice. Ms. Mihalik sued Cheuvreux for gender discrimination in violation of the NYCHLR.

Last year, the United States District Court for the Southern District of New York dismissed Ms. Mihalik’s case. It ruled there was not enough evidence to support a sexual harassment claim. But on appeal, the Second Circuit disagreed. It applied an earlier state court case which recognizes the NYCHRL is Broader than State and Federal Anti-Discrimination Laws, and reversed the decision. The NYCHRL was amended in 2005 to require it to be “construed liberally” to accomplish” its “uniquely broad and remedial purposes” regardless of what New York State and federal anti-discrimination laws say.

New York City Passes Paid Sick Leave Law

June 1, 2013 | by Jonathan I. Nirenberg

The City of New York recently passed the Earned Sick Leave Act, a new law that will require employers in New York City to provide employees a minimum amount of sick leave per year. Specifically, employers will have to provide at least 1 hour of sick time for every 30 hours an employee works, with a maximum requirement of 40 hours of sick time to an employee each year. It only applies to employees, not independent contractors. It does not apply to professional employees, even if they are paid by the hour.

Initially, employers with more than 20 employees must pay employees during the required sick leave. Eventually, that requirement will apply to companies with at least 15 employees. Smaller employers will only be required to provide unpaid sick leave. Companies will be permitted to count paid time off, such as paid vacation, personal days or days of rest, toward the required paid sick time, and can count other paid or unpaid time off toward the required unpaid sick time.

New York City employees will be entitled to use their sick leave time for their own mental or physical illness, injury, medical diagnosis, or preventive medical care; or to care for a family member who needs care or treatment for a mental or physical illness, injury or health condition, a medical diagnosis, or preventive medical care. The law defines family members to include the employee’s child, parent, spouse, domestic partner, or the child or parent of the employee’s spouse or domestic partner. Employees also will be able to use sick leave if their workplace or their child’s school or childcare provider is closed by a public official due to a public health emergency.

The new law indicates that employees can carry over sick time that they did not use in one year to the next, unless the company decides to pay them for their unused time. Companies are not obligated to let employees use more than 40 hours of sick time in a single year. But employers are not required to pay employees for their unused sick time, even when the company lays them off or fires them.

The Act includes an anti-retaliation provision which prohibits employers from threatening, disciplining, firing, demoting, suspending, reduction hours, or taking any other adverse employment action against any employee because he exercised (or attempted to exercise) his rights under the law. Importantly, it requires employees who want to bring a legal claim to file a complaint with the New York City Department of Consumer Affairs within 270 days after he knew or should have known about a violation. The law also includes provisions to protect the identity of individuals who bring claims under it, presumably out of concerns for workplace privacy.

The Earned Sick Leave Act will not begin to go into effect until April 1, 2014, at the earliest, and will be fully in effect by October 2016, at the latest. Once the law goes into effect, employees will begin to earn sick time. However, companies do not have to allow employees to use their sick time for 120 after it goes into effect. Similarly, companies do not have to permit employees to begin using this sick leave until 120 after they begin their job.

Court Holds Supervisor Can Be Held Personally Liable for Aiding and Abetting Own Violation of New Jersey Law Against Discrimination

May 24, 2013 | by Jonathan I. Nirenberg

Last week, I discussed a case in which New Jersey’s Appellate Division ruled a Jury Must Decide Whether Workers Are Employees or Independent Contractors Under New Jersey Law Against Discrimination. The same case also concludes that supervisors can be held personally liable under the New Jersey Law Against Discrimination (“LAD”) even if the supervisor was the only one who participated in the harassment or discrimination.

The LAD does not make supervisors or other individuals directly liable for engaging in prohibited discrimination or harassment. Instead, it makes it unlawful for anyone “to aid, abet, incite, compel or coerce” a violation of the LAD. As a result, courts have struggled with the question of whether a supervisor can be held personally liable for aiding and abetting harassment or discrimination if he was the only one who participated in it. Some courts have held there is no personal liability under those circumstances since the supervisor did not aiding or abetting anyone else. But, in Rowan v. Hartford Plaza LTD., LP, the Appellate Division ruled such a supervisor could be held personally liable for aiding and abetting the company’s violation of the LAD even if the only way the company violated the LAD was through the supervisor actions.

The New Jersey Supreme Court has previously recognized employees can be held liable for aiding and abetting a violation of the LAD if they engaged in “active and purposeful conduct.” That means the supervisor has to have been aware he engaged in an act prohibited by the LAD that harmed another employee, and in doing so knowingly and substantially assisted his employer in violating the LAD. In determining whether a supervisor did so, a judge or jury must consider: (1) the ways in which the supervisor participated in the harassment or discrimination, (2) the extent to which the supervisor assisted the harassment or discrimination, (3) whether the supervisor was present when the harassment or discrimination actually occurred, (4) the supervisor’s relationship to the other employees involved in the harassment or discrimination, and (5) the supervisor’s own motives and intentions.

In ruling that a supervisor can be held personally liable for aiding and abetting a violation of the LAD he committed by himself, the Appellate Division explained that supervisors have a unique role in shaping a work environment and are responsible for preventing and correcting unlawful harassment in the workplace. It also relied on the fact that previous cases have recognized supervisors can violate the LAD if they affirmatively assisted the harassment or discrimination, or if they acted with deliberately indifference toward it. The Court found it would not make sense if a supervisor could be held liable for failing to stop someone else from committing harassment or discrimination, but could not be held liable for personally committing the same harassment or discrimination.

It is important to note that Rowan is an unpublished opinion, meaning it is not legally binding on future trial courts. As a result, the question of whether and when a supervisor can be held personally for his or her own acts of unlawful harassment or discrimination remains an open question.