New Jersey Employment Lawyer Blog

Articles Posted in Gender Discrimination

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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.

NJ Appellate Decision - Liability for Gender Discrimination and Decision-Maker.jpgMs. 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.

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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.”

bigstock-Pregnant-Woman-At-Work-1460179.jpgMerck 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.

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Late last month, New Jersey amended its Equal Pay Act to require larger companies to tell employees they have the right to be free from sex discrimination with respect to their pay. The New Jersey Equal Pay Act prohibits discrimination based on sex regarding salary, benefits, and other compensation. Employees can recover double damages (called liquidated damages) plus attorney’s fees if they have been paid less due to their gender.

The new amendment to the Equal Pay Act requires companies with 50 or more employees to post a conspicuous notice to all of their workers, explaining their right not to experience gender inequality or bias in the terms and conditions of their employment, including compensation and benefits. The notice must specifically reference several laws that prohibit employment discrimination based on gender, the New Jersey Law Against Discrimination, Title VII of the Civil Rights Act of 1964, and the federal Equal Pay Act.

bigstock-Give-Me-Money-2831552.jpgThe amendment, which is scheduled to go into effect in November, also will require covered employers to provide all of their employees an individual notice explaining that pay discrimination based on sex violates both New Jersey and federal law. The New Jersey Department of Labor will be writing the notice. Once it is available, covered companies will have 30 days to provide a copy of the notice to all of their employees. Companies also will have to provide a copy of the notice (1) to all employees once per year, (2) to each new employee when they are hired, and (3) to any employee who requests it.

Companies will have the choice to send the notice by email, in print, as an attachment to the company’s employee handbook or manual, or by telling employees it is available on a company Internet or Intranet website. The notice will require employers to have employees sign and return the notice within 30 days to confirm they received, read, and understand it.

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On June 20, 2011, in a closely watched employment law case, the United States Supreme Court ruled that a group of approximately one-and-a-half-million female employees of Wal-Mart could not bring a class action gender discrimination lawsuit against the company. Specifically, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court found the women’s claims were not similar enough to each other to proceed as a class action. It reached that conclusion because the alleged discriminatory decisions were made by hundreds of different managers throughout the country, and were not based on a uniform corporate policy.

Three women, Betty Dukes, Christine Kwapnoski, and Edith Arana filed the lawsuit. They alleged that Wal-Mart gave its local store managers broad discretion to make salary and promotional decisions, the managers used that discretion to discriminate against women, and the company knew about the discrimination but did nothing to stop it. The women claim this is discrimination on the basis of their sex, in violation of Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employment discrimination due to gender, race, color, and religion.

Class actions are cases in which one or more individuals bring a case on behalf of a much larger group. To bring a class action, the plaintiffs must prove:

  1. Gender Discrimination retail store.jpgThe class is so large that it is impractical for each plaintiff to sue individually;
  2. There are questions of law and fact common to the whole group;
  3. The claims of the plaintiffs who filed the lawsuit (the class representatives) are typical of the claims of the rest of the group; and
  4. The class representatives will fairly and adequately protect the interests of the whole group.

In the Walmart case, the Supreme Court held that the plaintiffs could not meet the first two requirements because they did not have any evidence that Wal-Mart had a company-wide policy or practice of discriminating against women. The Court found it is not enough to show the company gave broad discretion to its managers, and many or most of those managers abused their discretion by discriminating. Rather, it concluded that since the members of the potential class had been impacted by millions of separate employment decisions made by thousands of different supervisors, it would be impossible to decide all of their claims in a single case. As a result, it ruled that the case cannot proceed as a class action. Instead, it sent it back to the trial court so Ms. Dukes, Ms. Kwapnoski, and Ms. Arana each can try to prove her individual gender discrimination case against Wal-Mart.

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A group of six female employees of Bayer HealthCare Pharmaceuticals recently filed a class action lawsuit claiming the company discriminated against them because of their gender. The case, which was filed in the United States District Court in Newark, New Jersey on March 21, 2011, seeks $100 million in damages.

The lawsuit claims Bayer discriminated against its female employees who hold Associate Director and higher level positions, in violation of the New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964. According to Katherine Kimpel, the employment lawyer who represents the plaintiffs in the lawsuit, “Bayer engages in systemic discrimination against its female employees – particularly those with family responsibilities – by paying them less than their counterparts, denying them promotions into better and higher paying positions, limiting their employment opportunities to lower and less desirable job classifications, and exposing them to different treatment and a hostile work environment.”

Female Employee Being Discriminated Against.jpgAccording to a press release issued by the law firm representing the female employees, the lawsuit claims Bayer published articles describing women as being prone to “mood swings,” “indecision,” and “backstabbing,” and concluding that “women with power are ‘loose cannons’ who often feel threatened by colleagues.” The case further alleges that Bayer’s managers made disparaging comments about working mothers, including saying the company “needed to stop hiring women of reproductive age.”

According to a company spokesperson, “Bayer denies the allegations of gender discrimination and will vigorously defend itself against these charges.” However, “Bayer will not comment further on pending litigation, other than to note that it is committed strongly to a policy of non-discrimination and equal treatment for all employees.” Bayer HealthCase Pharmaceuticals, which is a subsidiary of Bayer Corporation, has its headquarters in Wayne, New Jersey.

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Last week, the New Jersey Supreme Court ruled that each day an employee is paid a lower salary based on a past unlawful discriminatory decision is a separate violation of the New Jersey Law Against Discrimination (LAD). As a result, three tenured Seton Hall University professors can proceed with their age and gender discrimination lawsuit, even though (1) the alleged discriminatory decision was made more than two years before they filed the lawsuit, and (2) the LAD has a two-year statute of limitations.

Specifically, in Alexander v. Seton Hall University, three female professors who are over 60 years old sued Seton Hall and certain school officials. They claim they were paid less than their younger male colleagues. They largely based their claims on the University’s 2004-2005 annual report, which shows that Seton Hall pays higher salaries to younger male faculty members than older female faculty members.

However, the trial court dismissed the case, ruling that since the allegedly discriminatory decision was made more than two years before the employees sued, their case was barred by the statute of limitations. That decision was affirmed by New Jersey’s Appellate Division. Both courts relied on the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which ruled that the statute of limitations for claims of discriminatory wages under federal law begins when the employer makes the discriminatory decision.

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The Ledbetter decision was highly criticized because discriminatory decisions about salary impact employees long after the decisions are made, but employees frequently do not know they have been paid less than their coworkers until it is too late to sue. In response, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which makes it a separate violation of federal law each time a company pays an employee wages, benefits, or other compensation based on a previous discriminatory decision.

Fortunately, the New Jersey Supreme Court disagreed with the two lower courts. It noted that although it often looks at federal case law for guidance, it is not required to follow federal law when it interprets the LAD. Instead of following Ledbetter, it ruled that each payment of discriminatory wages is a separate violation of the LAD, and the two-year statute of limitations applies to each such violation.

Alexander makes it clear that it is possible to sue if you are receiving lower wages based on a past discriminatory decision. But it also makes it clear how important it is not to wait too long to assert your claim since you cannot recover damages for discriminatory wages you received more than two years before you file your lawsuit. Accordingly, it is highly recommended that you contact an employment lawyer as soon as you learn you are being paid less than your coworkers due to your age, gender, race, disability, or another unlawful factor.

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On May 22, 2009, in the case of Sassaman v. Gamache, Commissioner, Dutchess County Board of Elections, the United States Court of Appeals for the Second Circuit reinstated the gender discrimination claim of an employee who was forced to resign because another employee accused him of sexual harassment. The Second Circuit is the federal appellate court that covers several states, including New York.

The plaintiff in that case, Carl Thomas Sassaman, worked for the Dutchess County Board of Elections. In March 2005, another Board of Elections employee, Michelle Brant, accused Mr. Sassaman of harassing and stalking her. Mr. Sassaman denied harassing Ms. Brant. He also claimed that she had previously asked him if he was interested in a one-time sexual encounter with her, which he declined.

When Ms. Brant complained about the sexual harassment, the Commissioner of the Board of Election, David Gamache, suggested that Ms. Brant file a complaint with the Dutchess County Prosecutor’s office. The Prosecutor’s office subsequently found insufficient proof that Mr. Sassaman had enaged in a crime.

However, Mr. Gamache and the Board of Elections conducted virually no sexual harassment investigation of their own. Instead, they immediately suspended Mr. Sassaman without pay. A few weeks later, Mr. Gamache gave Mr. Sassaman the option to resign, or he would be fired. According to Mr. Sassaman, Mr. Gamache told him “I really don’t have any choice, Michelle [Brant] knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway.” Given the options, Mr. Sassaman resigned.

Mr. Sassaman then filed a lawsuit, alleging Mr. Gamache, the Dutchess County Board of Elections, and Dutchess County discriminated against him because of his gender in violation of Title VII of the Civil Rights Acts of 1964. The United States District Court for the Southern District of New York dismissed Mr. Sassaman’s case, concluding he did not have sufficient evidence of sex discrimination to even get to a jury. However, on appeal, the Second Circuit reinstated his case.

The Second Circuit reasoned that a jury could interpret Mr. Gamache’s statement that Mr. Sassaman “probably did what [Ms. Brant] said you did because you’re male,” as evidence of gender discrimination. Specifically, a jury could reasonably interpret his statement to mean that Mr. Gamache assumed Mr. Sassaman sexually harassed Ms. Brant based on a discriminatory assumption that men are likely to engage in sexual harassment. Adverse employment decisions based on stereotypes about the behavior of men or women are discriminatory, and violate Title VII.

The Court noted that, in context, the fact that Mr. Gamache terminated Mr. Sassaman’s employment without adequately investigating Ms. Brant’s sexual harassment allegations further support his gender discrimination claim. While Mr. Gamache claims he terminated Mr. Sassaman’s employment because he was afraid Ms. Brant would sue for sexual harassment, a jury might not believe that argument.

However, the Second Circuit was careful to note that an insufficient sexual harassment investigation, on its own, is not enough to prove sex discrimination. Rather, when there is other evidence of discrimination, the lack of a proper investigation potentially can support a discrimination claim. In other words, the Court did not rule that an alleged harasser can sue for discrimination merely because the employer fired him or her without engaging in an adequate investigation. It merely recognized that, in some cases, the employer’s failure to conduct a thorough sexual harassment investigation can further support a discrimination claim.

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Earlier this month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.

Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.

The EEOC’s 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.

The EEOC guidelines also recognize that many women in the work force face a “maternal wall” or “glass ceiling,” largely as a result of their dual roles as employees and caregivers, but also due to other gender stereotyping and discrimination. For example, women are drastically underrepresented in corporate management. Gender discrimination, such as discrimination based on the assumption that women are less dedicated to their jobs because they are more likely to be primary caregivers, violates New York, New Jersey federal anti-discrimination laws.

The EEOC’s guidelines provide many examples of evidence of discrimination against women based on the gender stereotype that they are more likely to be caregivers, including whether the employer (1) only asks female applicants if they are married or have young children (2) makes stereotypical or derogatory comments about pregnant women or working mothers, (3) treats women less favorable soon after it becomes aware they are pregnant, (4) assigns women with caregiving responsibilities to less prestigious or lower-paid jobs, or (5) treats men with caregiving responsibilities less favorably than female caregiving employees.

The guidelines further recognize that it violates the law to make employment decisions based on assumptions and stereotypes about women as caregivers. The EEOC mentions many common negative assumptions and stereotypes about women in the workplace, including the assumption that (1) women are less reliable because of childcare responsibilities, (2) female employees with children do not work long hours and are less committed to their jobs, (3) working mothers do not want to relocate to another city, (4) mothers do not want to work full time, and (5) pregnant women are less committed to their job or are unable to perform certain physical tasks. While employers are not permitted to make employment decisions based on discriminatory assumptions about women, it is generally not unlawful to make decisions based on an employee’s actual job performance or limitations, even if the job performance is unsatisfactory or the limitations are due to the employee’s caregiving responsibilities.

Employers can also violate the law by treating male caregivers worse than female caregivers. For example, it can be unlawful for a company to provide job flexibility to women to accommodate their caregiving responsibilities, but not to offer the same flexibility to similarly situated men.

The EEOC guidelines also discuss unlawful harassment of caregivers, and unlawful retaliation against individuals who oppose discrimination, including the fact that it is impermissible to retaliate against a woman who objects to gender stereotyping. In addition, they discuss the fact that the ADA protects many caregivers since it is unlawful to discriminate against employees due to their relationship or association with a disabled individual, including employees who care for a disabled child, spouse, or parent.

In contrast to the EEOC’s 2007 guidelines, its May 2009 suggested best practices go beyond what is legally required, and instead suggest proactive and progressive corporate policies and practices. According to the EEOC, implementing its suggested policies is likely to enhance productivity, reduce absenteeism, reduce costs, improve employee retention, and otherwise increase profits. The EEOC’s suggest numerous best practices, including:

  • Training managers about the legal obligations regarding employees with caregiving responsibilities;
  • Developing, disseminating, and enforcing a strong Equal Employment Opportunity (EEO) policy;
  • Responding to complaints of discrimination efficiently and effectively;
  • Protecting against retaliation;
  • Seeking out job candidates with caregiving responsibilities;
  • Removing barriers to individuals who are returning to work from leaves of absence;
  • Encouraging employees to request flexible work arrangements;
  • Making overtime as family-friendly as possible; and
  • Reassign job duties employees are unable to perform due to pregnancy or caregiving responsibilities.

If you have experienced discrimination or harassment at work due to your status as a caregiver, you should consider contacting an employment lawyer to discuss your legal rights.

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Earlier today, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The Act reverses the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case, the Supreme Court ruled that Lilly Ledbetter was outside of Title VII’s filing deadline when she initiated her gender discrimination claim against Goodyear. Ms. Ledbetter was seeking damages because she was paid less than men in comparable positions at the company. The Supreme Court found that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company’s initial discriminatory decision, even though she was still underpaid due to the past discrimination in that her salary remained lower than her male coworkers.

The Ledbetter decision was highly criticized on the basis that employees usually do not know how much their coworkers are paid, making it difficult or impossible for them to determine that they are experiencing discriminating against with respect to their compensation. As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

The Lilly Ledbetter Fair Pay Act amends both Title VII and the Americans with Disabilities Act of 1999 (ADA) by making it a separate violation of the law each time (1) a company adopts a discriminatory compensation decision or practice, (2) a company subjects an employee to a discriminatory compensation decision or practice, or (3) an employee is affected by a discriminatory compensation decision or practice, including each time an employee receives any wages, benefits, or other compensation that is at least in part the result of a discriminatory decision or practice.

Under the law, a new 180 (or 300) day period starts each time an individual is paid less due to his or her race, color, sex (gender), religion, national origin, or disability. In addition, the law permits an employee to prove damages resulting from pay discrimination for up to two years before the employee filed a charge of discrimination with the EEOC. The law is retroactive, applying to all covered discrimination that occurred on or after May 28, 2007, and to all claims that have been pending in the EEOC or in Court since that date.

As discussed in a previous article, the United States Senate voted in favor of the the Fair Pay Act on January 22, 2009. The House of Representatives voted in favor of the Act on January 27, 2009, paving the way for the President to sign it into law today.

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