New Jersey Employment Lawyer Blog

Articles Posted in Harassment

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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.

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Last week, I discussed Mandel v. M&Q Packaging Corp., a case which recognizes that an employee who sent sexual emails at work still can pursue a sexual harassment claim. Mandel also addresses when an employee can use evidence that someone else experienced harassment to prove her own harassment claim. In other words, it discusses when an employee can offer so-called “me too” evidence in a harassment case.

Mandel recognizes that whether you can use evidence that someone else experienced sexual harassment to try to prove your own case depends on the circumstances. The most important factor is how related or similar the two forms of harassment are to each other. A previous United States Supreme Court case, Spring/United Mgmt. Co. v. Mendelsohn, recognizes that depending on the circumstances, “me too” evidence can be used to prove a discrimination or harassment case even if the harassment involved a different supervisor.

Witness Chair prove discrimination.jpgApplying this principle in Mandel, the Third Circuit ruled that the lower court correctly prohibited Ms. Mandel from relying on evidence of harassment toward two other women. It explained that while Ms. Mandel worked for a subsidiary, M&Q Packaging, the other two women worked for its parent company, M&Q Plastic Products, Inc. As a result, the Third Circuit found the harassment the other women experienced was not similar enough to the harassment Ms. Mandel alleged she experience. It therefore ruled that Ms. Mandel cannot use evidence regarding the sexual harassment the other two women experienced to support her own claim.

In other instances, an employee might be able to use evidence that another supervisor harassed someone else at work to prove her claim. Relevant factors are likely to include things like how similar the acts of harassment are to each other, whether the harassment occurred in the same department or building, whether the harassers reported to the same supervisor, how close in time the harassment occurred to each other, and other similarities and differences between the acts of harassment.

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By jesusmarin

When an employee complains about discrimination or harassment at work, his employer generally has an obligation to investigate. It is common for employers to require employees involved in an internal investigation to keep all information about the investigation confidential. In some cases, this is meant to protect the privacy of the employee who made the complaint and other employees involved in the investigation. In other cases, the company’s goal is to discourage or prevent other employees from making their own discrimination or harassment complaints.

bigstock-Confidential-File-140560.jpgThe United States Equal Employment Opportunity Commission (EEOC) recently addressed whether these restrictions violate Title VII, a federal employment law that prohibits discrimination based on race, color, religion, sex, and national origin.

According to a blog post by Lorene Schaefer of One Mediation, the EEOC’s Regional office in Buffalo, New York recently concluded that an employer committed a “flagrant” violation of Title VII by having a policy that prohibited all employees involved in an internal harassment investigation from discussing the harassment with anyone else. In that case, the employer warned the employees they could be subject to discipline if they did not comply with the confidentiality requirement.

The EEOC explained that an employee’s ability to oppose discrimination without fear of retaliation is one of the most important rights protected by Title VII. The EEOC found the company’s broad policy preventing employees from discussing the discrimination or harassment with anyone else interfered with that right since it implies that an employee could be disciplined if he contacted the EEOC about the harassment.

The conclusion reached by the EEOC’s Buffalo office is only an opinion, and is not necessarily the law. However, it would not be surprising if the EEOC adopted the same position nationwide. In fact, the National Labor Relations Board (NLRB) also prohibits an employer from imposing a blanket confidentiality requirement for employees involved in an internal investigation because it violates their right to unionize or otherwise work together to advance their rights in the workplace.

In a recent case, the NLRB gave examples of circumstances when an employer can legitimately require employees not to disclose anything related to an investigation. For example, it indicated that employers can require confidentiality to protect witnesses from retaliation, to minimize the risk of evidence being destroyed or fabricated, or to prevent a cover up.
It is often unclear whether you can discuss your harassment or discrimination claim with your coworkers or friends while your company is investigating. However, it clearly would be illegal for your employer to discipline or fire you because you contacted an employment lawyer or assisted the EEOC in their investigation.

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By jesusmarin
Posted in: Harassment
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On July 28, 2010, New Jersey’s Appellate Division ruled that a former employee of the Atlantic City Board of Education could proceed with his lawsuit. Even though the decision in Clarke v. Atlantic City Board of Education is not a legally binding precedent, it is noteworthy because it recognizes that a few relatively minor discriminatory actions potentially can be enough to prove a harassment claim.

The case was filed by Melvin Clarke, who had been an Assistant Superintendent for the Board of Education. He has a disability which limits his ability to walk, and as a result uses a power scooter and a cane. In February 2002, he filed a disability discrimination lawsuit against the Board and two of its employees. As part of a settlement of that case, the Board agreed to give Mr. Clarke a raise of $5,000 per year, and guaranteed his annual salary would remain at least $5,000 higher than the other Assistant Superintendents in the School District.

In June 2006, Mr. Clarke sued the Board again, this time alleging both retaliation and disability discrimination. The trial court dismissed his claim, finding he did not allege an “adverse employment action.” To win in an employment discrimination case, an employee must show he suffered an adverse employment action, such as being fired or demoted because of his or her age, race, gender, disability, or another legally protected category.

As the Appellate Division explained, an adverse employment action has to be serious enough to alter the employee’s compensation, terms, conditions, or privileges of employment, deprived the employee of future job opportunities, or had another significant negative effect on his or her job. Examples include being fired, demoted, suspended, passed over for a promotion, forced to resign, or harassed. Harassment is when a company subjects an employee to many separate but relatively minor actions, each of which might not be actionable on its own, but when combined, make up a pattern of discrimination or retaliation conduct.

The Appellate Division reversed the trial court’s decision because it found Mr. Clarke’s allegations, if true, could establish a hostile work environment harassment claim. His relevant allegations included the fact that the Board (1) moved his office to the sixth floor of the building and further from a bathroom, even though he has difficulty walking, and did not relocate his office after he was stranded on the sixth floor during a fire alarm; (2) refused to develop a plan to provide reasonable accommodations for his disability; and (3) violated his settlement agreement by failing to keep his salary at least $5,000 more than the other Assistant Superintendents. Since the appellate court found Mr. Clarke’s allegations could be enough to prove a harassment claim, it sent his case back to the trial court to give him a chance to prove his case.

The question of whether a particular situation is bad enough to be a legally actionable harassment is very fact specific. It depends on factors such has how frequently the harassment happens, how severe the harassment is, and who is committing the harassment.

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New York City’s Broad Definition of Harassment

Earlier this year, the New York Supreme Court’s Appellate Division interpreted the New York City Human Rights Law (NYCHRL) much more broadly than courts have interpreted New York State and federal employment laws prohibiting discrimination, harassment and retaliation. Under state and federal anti-discrimination laws, an employee must prove that harassment was “severe or pervasive.” That means harassment does not violate New York State or federal law unless it is sufficiently harmful or frequent that it significantly impacts the terms and conditions of employment. However, the Appellate Division ruled that harassment does not need to be severe or pervasive to violate the NYCHRL.

New York City’s Human Rights Law applies not only to employees who work in New York City, but also applies if the discrimination, harassment, or retaliation originated in New York City.

According to that case, Williams v. The New York City Housing Authority, the primary issue in harassment cases under the NYCHRL is whether the employee can prove that the employer treated him or her worse than other employees because he or she is a member of a legally protected category. The legally protected categories for employees under the New York City law are race, color, national origin, creed, age, disability, gender, gender identity, sexual orientation, marital status, partnership status, alienage, citizenship status, arrest or conviction record, and status as a victim of domestic violence, stalking or sex offense.

In applying this broad interpretation of New York City’s anti-discrimination law, the appellate court relied on the New York City Restoration Act of 2005, which amended the NYCHRL to require that it “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws . . . have been so construed.” The Court also noted that the New York City Council has directed courts that “discrimination should not play a role in decisions made by employers.”

New York City’s Broad Definition of Retaliation

The appellate court also interpreted the anti-retaliation provision of the New York City Human Rights Law very broadly. It did so because the Law was amended in 1991 to prohibit retaliation “in any manner.” As a result, the Court ruled that retaliation does not have an adverse impact on the terms and conditions of employment to be prohibited by the NYCHRL. This is in contrast to New York State and federal law, both of which require retaliation to materially impact of the terms and conditions of employment for it to be actionable. In other words, as the appellate court put it, retaliation is prohibited by the NYCHRL “regardless of the degree or quality of harm to the particular complainant” because “retaliation harms the public interest by deterring others from filing a charge” of discrimination.

However, the Court did not interpret retaliation without limitations. Rather, it ruled that retaliatory or discriminatory acts “must be reasonably likely to deter a person from engaging in protected activity” to be protected by the New York City NYCHRL.

Conclusion

Williams recognizes that the NYC Human Rights Law is an extraordinarily broad employment law. However, it is not without limits. For example, it states that it does not intend to interpret the Law as a “general civility code.” Accordingly, it recognized that employers can avoid liability for discrimination, harassment, or retaliation if they can prove the alleged conduct toward was “nothing more than what a reasonable victim of discrimination would consider “petty slights and trivial inconveniences.’”

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On January 26, 2009, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits retaliation against employees who speak out about harassment while answering questions as part of a company’s internal harassment investigation.

The case, Crawford v. Metropolitan Government of Nashville and Davidson County, involved a sexual harassment investigation by the Metropolitan Government of Nashville and Davidson County, Tennessee (Metro). Metro began investigating rumors of sexual harassment by one of its employee, Gene Hughes. During the investigation, a human resources representative asked an employee, Vicky Crawford, if she had witnessed any inappropriate behavior by Mr. Hughes. In response, Ms. Crawford described several examples of Mr. Hughes sexually harassing conduct toward her. During the investigation, two other Metro employees also indicated that Mr. Hughes had sexually harassed them.

Metro took no disciplinary action against Hughes. However, shortly after it completed the investigation, it fired Ms. Crawford and the two other women who accused Mr. Hughes of sexual harassment. Metro claims it fired Ms. Crawford for embezzlement.

After Metro fired her, Ms. Crawford filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC), and eventually sued. She alleged that Metro fired her in retaliation for reporting Mr. Hughes’ sexual harassment.

The United States District Court dismissed Ms. Crawford’s case, finding that her complaints of sexual harassment were not protected by Title VII because she did not initiate the complaint, but rather answered questions during an investigation initiated by her employer. On appeal, the United States Court of Appeals for the Sixth Circuit agreed with the District Court, and affirmed the dismissal of Ms. Crawford’s case. However, the United States Supreme Court reversed that decision, reinstated Ms. Crawford’s case, and sent it back to the District Court for further proceedings.

In its legal analysis, the Supreme Court noted that Title VII includes two provisions that make it unlawful for an employer to retaliate against an employee who reports workplace race or gender discrimination. The first of those provisions, which the Supreme Court referred to as the “opposition clause,” makes it unlawful to retaliate against any employee because she opposed any practice that Title VII makes unlawful. The other anti-retaliation provision, which the Supreme Court referred to as the “participation clause,” makes it unlawful to retaliate against an employee because she filed a charge of discrimination, or because she testified, assisted, or participated in any investigation, proceeding or hearing pursuant to Title VII.

The Supreme Court based its decision in Crawford on the opposition clause, as opposed to the participation clause. The Court concluded that Ms. Crawford’s statements were made in opposition to Mr. Hughes’ sexual harassment since she expressed her disapproval with his behavior. In support of its position, the Supreme Court relied on an EEOC guideline which states that “‘[w]hen an employee communicates to her employer a belief that the employer has engaged in … a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’” Notably, the Court indicated that protected opposition would include “refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons,” suggesting that the opposition protects employees who verbally or orally object to discrimination, but also to employees who refuse to participate in discriminatory practices.

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