New Jersey Employment Lawyer Blog

New York State law does not require employers to allow employees to take time off for bereavement leave. However, under New York's new funeral and bereavement leave law, when a company does allow employees to take time off for the death of a spouse, or for the child, parent or other relative of their spouse, they also must offer the same bereavement leave to employees for the death of their same-sex committed partner, and for the child, parent or other relative of the employee's same-sex committed partner.

Signed by Governor Patterson on August 31, 2010, this new law is an addition to New York's Civil Rights Law. It defines "same-sex committed partners" as couples that are "financially and emotionally interdependent in a manner commonly presumed of spouses." The law goes into effect today, October 29, 2010.

New York's funeral and bereavement leave law was passed because individuals in same-sex relationships historically have been denied the right to civil marriage, and are often denied the right to bereavement leave to attend the funeral of their partners and their partners' blood relatives. The New York State Senate and Assembly concluded that this failed to recognize the value that any committed relationship contributes to our communities. The Legislature also concluded that "enlightened companies with domestic partnership policies now allow this type of funeral or bereavement leave."

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The New Jersey Civil Rights Act provides a remedy for many important civil rights. However, most people are unfamiliar with the New Jersey Civil Rights Act. This article answers some of the most frequently asked questions about the New Jersey Civil Rights Act.

Q. What is the New Jersey Civil Rights Act?

A. The New Jersey Civil Rights Act was passed in 2004. It creates remedies for violations of certain provisions of the New Jersey Constitution, the United States Constitution, and other New Jersey laws.

Q. Which of my rights are protected under the New Jersey Civil Rights Act?

A. The New Jersey Civil Rights Act protects a broad range of legal rights, including freedom of speech, freedom of religion, freedom of association, freedom to petition the government, equal protection of the law, and due process of law. It also creates a remedy for other rights protected by the United States Constitution, the New Jersey Constitution, and other New Jersey laws.

In addition to providing a remedy for violations of those legal rights, the New Jersey Civil Rights Act prohibits anyone from interfering with any of those rights, or attempting to interfere with any of those rights through threats, intimidation, or coercion.

Q. Can I file a lawsuit under the New Jersey Civil Rights Act?

A. You can file a lawsuit under the New Jersey Civil Rights Act only if the person who violated your rights was acting "under color of law." That basically means the person who violated your rights was working for, or acting on behalf of, the local, state, or federal government.

Q. Does the New Jersey Civil Rights Act still protect me if my civil rights were violated by someone who was not acting on behalf of the state, local, or federal government?

A. Yes. However, you cannot file your own lawsuit. Instead, you can file a claim under the New Jersey Civil Rights Act with New Jersey's Attorney General. The Attorney General then has the option to bring a civil lawsuit on your behalf.

Q. What are the remedies available to me if I win a case under the New Jersey Civil Rights Act?

A. You can recover damages to compensate you for the harm caused by the violation of your civil rights, potentially including lost salary and benefits, and damages for emotional distress. You also can recover your attorney's fees and legal costs. In addition, the person or government entity that violated your civil rights can be required to pay a civil penalty to the State of New Jersey.

Continue reading "Frequently Asked Questions (FAQ) About the New Jersey Civil Rights Act" »

Two weeks ago, the United States Equal Employment Opportunity Commission (EEOC) filed a retaliation lawsuit against New York based Fox News Network LLC, the company that owns and operates the Fox News Channel. According to the EEOC's September 30, 2010 press release, the lawsuit alleges that Fox News retaliated against Catherine Herridge, one of its female news correspondents, after she complained about gender and age discrimination. The EEOC is a federal agency that helps employees enforce their rights under three anti-discrimination laws, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Age Discrimination in Employment Act.

In 2007, Ms. Herridge made several internal complaints that she was experiencing disparate pay and unequal employment opportunities because of her gender and age, the EEOC announced. Fox News conducted an investigation, but found no evidence of age or gender discrimination. In the fall or summer of 2008, several months after Fox News completed its internal investigation, Ms. Herridge refused to sign a new employment agreement with Fox News because it referred to her discrimination complaints. Fox News ignored Ms. Herridge's requests to remove that language from her contract, and ignored her other attempts to negotiate her employment agreement. As a result, instead of entering into a new guaranteed employment contract, Ms. Herridge became an employee at-will. It was not until June 2009, after Ms. Herridge filed a charge of discrimination with the EEOC and the EEOC investigated that Fox News finally removed the language about Ms. Herridge's discrimination complaints from her employment contract.

According to the EEOC's press release, the lawsuit is seeking money damages to compensate Ms. Herridge for Fox New's retaliation, as well as punitive damages and an injunction to prevent Fox News from engaging in further retaliation against employees who oppose discrimination. Discussing the lawsuit, EEOC attorney Lynette A. Barnes stated that "[t]he anti-retaliation provisions of Title VII and other federal anti-discrimination laws are indispensable to the attainment of a workplace free of discrimination." Ms. Barnes further indicated that "[e]mployers must take care that any action taken in response to a discrimination complaint is constructive and not retaliatory."

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Earlier this year, New York State's highest court ruled that, under the New York City Human Rights Law (NYCHRL), employers are strictly liable for harassment and discrimination committed by supervisors. The case, Zakrzewska v. The New School, concludes that an affirmative defense available to employers under federal anti-discrimination laws does not apply under the NYCHRL.

The case involves Dominika Zakrzewska, a student at The New School who also worked part time in the school's Academic Computing Center. Ms. Zakrzewska claims her immediate supervisor, Kwang-Wen Pan, sent her harassing emails and otherwise sexually harassed her. She eventually complained to school officials about the harassment. She also claims Mr. Pan began to secretly monitor her Internet use at work, in retaliation for her accusing him of sexual harassment. Ms. Zakrzewska sued Mr. Pan and The New School in the United States District Court for the Southern District of New York, alleging sexual harassment and retaliation in violation of the NYCHRL.

As the New York Court of Appeals explained, under federal anti-discrimination laws a company can avoid liability for harassment committed by one of its supervisors if it can prove that: (1) the employee did not suffer an adverse employment action, such as being fired, demoted, or given an unfavorable work assignment for a discriminatory reason, (2) the company took prompt and reasonable care to prevent and correct the harassment once it learned about it, and (3) the employee unreasonably failed to use an opportunity the employer provided to help prevent or correct the harassment, such as filing a complaint under the company's anti-discrimination policy. This defense, which comes from the United States Supreme Court's decisions in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, is known as the Faragher/Ellerth defense.

In Zakrzewska, the District Judge asked the United States Court of Appeals for the Second Circuit whether the Faragher/Ellerth defense is available under the NYCHRL. The Second Circuit then asked the New York Court of Appeals to answer the same question. The Court of Appeals concluded that the defense is not available under NYCHRL. Rather, under the NYCHRL employers are strictly liable for harassment committed by their managers and supervisors. This means a company can be held liable for harassment by a supervisor even if the employee who was harassed never reported it and the company was unaware the harassment occurred. The Court of Appeals also indicated that employers can be held liable for harassment by non-supervisors if it knew or should have known about the harassment, but either permitted it to happen or failed to immediate take appropriate actions to stop it.

Continue reading "Employers Strictly Liable for Supervisors' Sexual Harassment Under New York City Human Rights Law" »