Articles Posted in Sexual Orientation Discrimination

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).

School Subject of Discrimination Lawsuit.jpgThe 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.

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Over the past few weeks, one of our clients has been in the news. Specifically, Bogota New Jersey Police Officer Regina Tasca is currently in the middle of a disciplinary hearing that will determine whether she will lose her job. Her hearing has received significant media attention.

Officer Tasca is the only female and the only gay member of the Bogota Police Department. She has retained my firm to represent her in a civil lawsuit based on the fact that Bogota engaged in gender and sexual orientation discrimination and harassment toward her, and retaliated against her in violation of her civil rights and the New Jersey Conscientious Employee Protection Act (CEPA). She is waiting for the outcome of her disciplinary hearing before she files her lawsuit.

On April 18, Officer Tasca was interviewed live on the WPIX morning news for the story Officer Regina Tasca On Being Suspended For Not Lying About Fellow Cops’ Actions.

http://www.youtube.com/watch?v=EzqDrp0gvuM

On April 17, 2012 her case was the subject of a story on the WPIX evening news entitled Officer May Be Fired After Stopping Beatdown.

Officer Tasca’s hearing has also been the subject of an article in the Bergen Record. Officer Tasca’s disciplinary hearing is scheduled to resume on April 24, April 25.

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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 Appellate Division recently ruled that it is possible for an employee to prove he was fired for a discriminatory reason even if the person who made the ultimate decision to fire him did not have any discriminatory animus. Specifically, that can happen if the employee’s supervisor did something to bias the decisionmaker, or if the decisionmaker’s involvement in the process was a mere formality.

The case, Kwiatkowski v. Merrill Lynch, involved Merrill Lynch’s decision to fire one of its employees, Darren Kwiatkowski. Mr. Kwiatkowski is gay. Merrill lynch fired him after he deliberately disobeyed an instruction from his supervisor, Theresa Wonder.

Immediately after Mr. Kwiatkowski’s insubordination, Ms. Wonder reported him to her supervisor, Sandra Givas, and recommended that the company should fire him. There was evidence that Ms. Wonder knew Mr. Kwiatkowski was gay and was biased against him on that basis. However, there was no evidence that Ms. Givas even knew that he was gay.

On August 13, 2008, in Kwiatkowski v. Merrill Lynch, New Jersey’s Appellate Division ruled that a single anti-gay comment can create a hostile work environment in violation of the New Jersey Law Against Discrimination (“LAD”). In particular, the court ruled that a jury could find that an employee had been unlawfully harassed based solely on his supervisor calling him a “stupid fag” once, under her breath. That is important because the law requires harassment to be either sufficiently severe (bad enough) or pervasive (frequent enough) that the terms and conditions of employment have been materially changed and the employee’s work environment is hostile.

The decision in that case is unpublished. That means it is not binding on other New Jersey courts. However, it is still a significant decision for its reasoning and analysis, which other courts are likely to consider, if not follow.

The plaintiff in that case, Mr. Kwiatkowski, is gay. Although he told only a few of his coworkers, he assumed it was common knowledge that he was gay.

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