Articles Posted in Sexual Harassment

A recent ruling by the Second Circuit Court of Appeals in a sexual harassment retaliation case holds that an employer can be liable if it negligently fires an employee due to the discriminatory or retaliatory animus of an employee who was not a supervisor.

Andrea Vasquez worked for Empress Ambulance Service, Inc. as an emergency medical technician.  One of her coworkers, Tyrell Gray, repeatedly asked her out on dates, tried to flirt with her and put his arm around hers and touched her shoulders.  Mr. Gray’s conduct was unwelcome and made Ms. Vazquez uncomfortable.

Female employee receives sexually harassing text message.For instance, on January 8, 2014 Mr. Gray asked Ms. Vasquez to go on a date with him.  Ms. Vazquez made it clear she was not interested.  Later that evening Mr. Gray texted Ms. Vazquez a picture of his penis.  Extremely upset, embarrassed and in tears, at the end of her shift Ms. Vazquez complained to her supervisor and began typing a sexual harassment complaint.

The New Jersey Law Against Discrimination (“LAD”) prohibits employers from retaliating against employees who object to harassment in the workplace.  A recent case recognizes that the LAD also protects employees who object to sexual harassment committed by a customer.

Nicole Prager was a receptionist for Joyce Honda.  One day, a customer tugged at the arm of her shirt and exposed her bra at work.

Female Employee Being Sexually Harassed by CustomerAfter the incident occurred, a service manager asked Ms. Prager if she wanted to file criminal charges against the customer.  When Ms. Prager indicated she was not sure, the manager told her she had to decide within 15 minutes.  Ms. Prager believed the manager was trying to discourage her from pressing charges because the harasser was a very good customer who had purchased approximately 20 cars during the previous year.

Woman being sexually harassed by bossThe New Jersey Supreme recently ruled that evidence showing an employer told a key witness to provide false information during a company’s internal sexual harassment investigation can be relevant at the trial.

Tonique Griffin, Virginia Best and Rosalyn Walker, three female employees of the City of East Orange, claim their supervisor, Obed Prinvil, created a sexually hostile work environment for them.  Specifically, Ms. Griffin and Ms. Best claim Mr. Prinvil kissed them, and Ms. Walker alleges he repeatedly told her he was attracted to her, loved her and wanted to be “more than just friends,” and once tried to kiss her.

After the three women reported Mr. Prinvil’s harassment, the City hired an employment lawyer, Dina Mastellone, to investigate.  After Ms. Mastellone had finished interviewing witnesses, the City suggested she should interview one of the Mayor’s aides, Corletta Hicks.  Ms. Hicks then made negative statements to Ms. Mastellone about all three women, including that Ms. Griffin and Ms. Best “have always been a mess,” that Ms. Griffin “preys on older married men,” that she suspected Ms. Griffin had a “personal relationship” with Mr. Prinvil, and that Ms. Griffin had serious financial problems.  In contrast, Ms. Hicks described Mr. Prinvil as a “phenomenal director” who always acted professionally in the workplace.

A recent decision by New Jersey’s Appellate Division makes it clear that merely having an anti-harassment policy does not insulate employers from sexual harassment lawsuits. The ruling comes on the heels of the New Jersey Supreme Court’s ruling earlier this year in Aguas v. State of New Jersey, which created a new affirmative defense for employers in sexual harassment cases under the New Jersey Law Against Discrimination (“LAD”). I discussed Aguas in my article: Importance of Reporting Sexual Harassment Reinforced by New Jersey Supreme Court.

The Appellate Division ruling involved Anita Jones, who worked for Mott’s LLP as a machine operator. For most of her employment, Ms. Jones was a temporary employee.

Sexual harassment unwelcomeAccording to Ms. Jones, numerous Mott’s employees sexually harassed her. For example, she says the individual who initially trained her repeatedly touched her breasts. She says that when she objected, the harasser yelled at her. She did not report this sexual harassment to anyone because she was just a temporary employee. When she complained to a supervisor about the employee yelling at her, the supervisor promised he would take care of it. However, she alleges that when she complained to the same supervisor several other times he either put his arm around her shoulders or touched her back. She did not object to this harassment because the supervisor warned her that “temps come a dime a dozen and [if] one don’t do what you want, you get another one,” implying he would have her fired if she complained about him.

In a recent employment law case, Davis v. Husain, the New Jersey Supreme Court held that a judge may not engage in any communication with a member of the jury outside of the presence of the lawyers involved in the case (known as ex parte communications), including discussions after the jury has rendered a verdict. In this case involving a claim of sexual harassment, the jury found plaintiff’s former employer liable for having engaged in sexual harassment. After the verdict was rendered and the jury was dismissed, a juror mentioned to the trial court judge that the defendant had not placed his hand on the Bible when taking the oath before he testified. The conversation between the judge and the juror occurred outside the presence of counsel involved in the case.

The judge later advised the attorneys for both parties of the comment by the juror. In motions filed after the trial, the defendant moved for a new trial. The trial court denied the motion, and the Appellate Division agreed with the trial Court. The defendant then appealed to the New Jersey Supreme Court.

In reaching a decision in the case, the Supreme Court noted that under the Court Rules all communications between a judge and a jury during a trial must be in open court. The Court considered two Appellate Division cases in New Jersey, a civil case and a criminal case. In both of these cases, the Appellate Division expressed disfavor as to the ex parte communications between the judge and jury after the jury reached a verdict.

New Defense to Sexual Harassment Claims

Earlier this week, in Aguas v. State of New Jersey, the New Jersey Supreme Court provided employers a new defense to sexual harassment claims under the New Jersey Law Against Discrimination (“LAD”).

Specifically, the Court adopted a defense that previously applied only in federal cases. That defense is often referred to as the “Faragher/Ellerth defense,” from the two United States Supreme Court cases that initially adopted the defense under federal law: Faragher v. City of Boca Raton and Burlington Industries v. Ellerth.

A recent federal case from the District of New Jersey denied an employer’s motion for summary judgment on an employee’s sexual harassment case, paving the way for a jury trial. In the process, the court provided a good overview of what an employee needs to prove to be able to survive such a motion and get a case to a jury.

Joan Lane worked as a Material Handler for Sears Logistics Services, Inc. She was the only female who held this role on her floor. She claims the Material Handler Lead for her shift, Louis Fine, engaged in unwelcome conduct toward her including (1) calling her a “b*tch;” (2) calling her “dumb;” (3) “inviting her to [his] penis;” (4) claiming “all [she] wants is my d*ck;” (5) telling her to sit on his face; (6) making sexual gestures to her; and (7) claiming a temporary employee wanted her body. Ms. Lane eventually filed a lawsuit against her employer claiming Mr. Fine created a sexually hostile work environment for her in violation of the New Jersey Law Against Discrimination (LAD).

Sexual HarassmentAs the court explained, in a sexual harassment case the employee has to prove the conduct toward her (1) would not have occurred but for her gender, and (2) was severe or pervasive (frequent) enough (3) to make a reasonable woman believe the terms and conditions of her employment were changed and her work environment is hostile or abusive. The judge found Ms. Lane has enough evidence to meet each of those requirements. He indicated that even though Mr. Fine denied Ms. Lane’s allegations, for purposes of deciding a motion for judgment the court has to assume all of her testimony and evidence is true because it is the jury’s job to decide who is telling the truth. The judge further recognized that Ms. Lane’s evidence could support the conclusion that she was the victim of severe or pervasive sexual harassment. Moreover, he found a jury could conclude the harassment occurred because of her gender since she was the only female Material Handler on her floor and some of Mr. Fine’s conduct toward her was sexual in nature.

Earlier this month, the United States Court of Appeals for the Second Circuit issued an unpublished summary order which reinstates an employee’s sexual harassment claim that had been dismissed.  However, in a separate published opinion issued on the same day the court upheld the dismissal of Ms. Castagna’s related tort claims because she did not file her lawsuit until after the statute of limitations had expired.

Boss shouting at assistantPatricia Castagna worked for Majestic Kitchens, Inc., as its receptionist.  She alleges Bill Luceno, who is the owner of the company and was Ms. Castagna’s supervisor, harassed her because of her sex in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (“NYSHRL”).  Prior to the appeal, the trial court had dismissed those claims because Ms. Castagna admitted Mr. Luceno treated virtually all of the company’s employees poorly.

In support of her sexual harassment claims, Ms. Castagna claims Mr. Luceno physically threatened her and two other female employees with physical violence, but never physically threatened any male employees.  For example, she claims that on one occasion he screamed and cursed before he shoved her computer monitor toward her, which caused her to fear for her safety. Although she acknowledges Mr. Luceno’s had outbursts toward both male and female employees of Majestic, she claims the most extreme outbursts were directed toward women, and that during some of his outbursts he referred to women as “bitch[es].”

Earlier this month, a federal judge ruled that neither the New York Human Rights Law (NYHRL) nor the New York City Human Rights Law (NYCHRL) protect unpaid interns from a sexually hostile work environment.

New York Law Does Not Protect Unpaid Interns from Sexual Harassment.jpgLihuan Wang worked as an unpaid intern for Phoenix Satellite TV US, a company that produces Chinese language television news programs in the United States. She alleges one of the company’s bureau chiefs, Zhengzhu Liu, invited her to talk to him about her job performance after a group lunch meeting, and then convinced her to go to his hotel room based on the excuse he needed to drop off some personal belongings. During the car ride to the hotel Mr. Liu made Ms. Wang extremely uncomfortable by discussing the sexual prowess of a black man who had dated a woman he knew. In the hotel he complemented Ms. Liu’s eyes before bringing her to his room. Once in his hotel room he asked her why she is so beautiful, threw his arms around her, attempted to kiss her, and squeezed her buttocks before she left.

After Ms. Wang rejected Mr. Liu’s advances, he suddenly stopped showing any interest in hiring her as an employee, and claimed Phoenix could not hire her because of a supposed “visa quota.” When Ms. Wang subsequently asked Mr. Liu about a potential job with Phoenix, he invited her to go to Atlantic City with him for the weekend, supposedly to discuss job opportunities. Ms. Wang declined his invitation and gave up on the possibility of a paid position with Phoenix.

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.

New York City Human Rights Law and sexual harassment.jpgMs. 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.

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