New Jersey Employment Lawyer Blog

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).

The 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.

Continue reading "New Jersey Court Reverses Dismissal of Sexual Orientation Discrimination Case" »

New York City recently amended its anti-discrimination law, the New York Human Rights Law (NYCHRL), to prohibit discrimination against individuals who are unemployed. The amendment to the NYCHRL prohibits discrimination with respect to both hiring and the terms and conditions of employment on the basis that the job applicant is unemployed. In other words, it makes it unlawful to refuse to hire an employee because he is unemployed, or to offer him a lower salary or employee benefits because he does not already have a job somewhere else.

There are several important exceptions in the amendment to the NYCHRL. For example, it is still permissible for employers to consider a job candidate's unemployment status if there is a "substantial job-related reason" for doing so. It also permits employers to choose to hire only internal job candidates, even though doing so would eliminate unemployed job candidates from consideration. In addition, it does not apply to civil service employees, and is not intended to interfere with the rights of any employee under a collective bargaining agreement. Further, it makes it clear that employers can ask job candidates about the circumstances under which they left their previous jobs, and to consider those circumstances when deciding who to hire.

The amendment also prohibits employers and employment agencies from advertising that being employed is a job qualification or requirement. In this respect, the New York City law is similar to a law passed in New Jersey last year (see our previous article: New Jersey Makes it Illegal to Discriminate Against Unemployed Job Candidates). But unlike New Jersey's law, the NYC law permits employees who have experienced discrimination because of their unemployment status to recover damages including lost past and future wages, emotional distress damages, attorneys' fees, and potentially punitive damages.

Although Mayor Michael Bloomberg vetoed the law, the New York City Council overrode his veto and enacted it on March 13, 2013. It goes into effect on June 11, 2013.

Continue reading "New York City Prohibits Discrimination Against Unemployed Job Candidates" »

Last week, I discussed Montone v. City of Jersey City, a case that ruled Police Sergeant Valerie Montone can proceed with her political affiliation case against the Jersey City Police Department. In the same opinion the Third Circuit ruled that eight other police sergeants can continue with their claim that Jersey City failed to promote them because it was discriminating against Montone.

The other eight Sergeants were on the same promotional list as Montone. None of them were promoted because Jersey City stopped promoting any sergeants to lieutenant, allegedly because Jersey City did not want to promote Montone. In other words, they claim they were collateral damage in Jersey City's efforts to discriminate against Montone for exercising her First Amendment right to political affiliation.

The Third Circuit ruled that employees can sue for retaliation in violation of the First Amendment even if the retaliation was based on someone else exercising his or her First Amendment rights. It relied on a previous Third Circuit case which recognizes that indirect victims of gender discrimination can sue for discrimination under Title VII if they were treated worse for reasons that "trace back" to unlawful discrimination. In that case, male employees were permitted to pursue a gender discrimination claim in which they claimed their employer refused to hire them from a "priority list" because the company did not want to hire the women on the list. The Third Circuit also relied on a United States Supreme Court opinion recognizing an employee can bring a retaliation claim based on a coworker's legally protected activity (in that case, retaliation against an employee's fiancée because the employee filed a claim of gender discrimination with the Equal Employment Opportunity Commission) if the retaliatory action would dissuade a reasonable person from engaging in the protected activity. The Third Circuit explained that without this type of protection, municipal employees might not exercise their rights to express their political beliefs, or might change their political association to avoid retaliation.

Ultimately, the Third Circuit ruled that the eight sergeants can proceed with their civil rights case. It found there is a genuine dispute whether Jersey City failed to promote them because Montone exercised her right of political affiliation. For example, it found disputes regarding whether there really was a shortage of lieutenants in the police department, whether the Police Chief had the authority to make promotions, and why there were no promotions to lieutenant for three years. It therefore concluded that a jury must decide whether Jersey City retaliated against them.

Continue reading "Public Employees Can Pursue First Amendment Claim if Harmed by Employer's Discrimination Against Coworker" »

On March 8, 2013, the Third Circuit Court of Appeals ruled that Police Sergeant Valerie Montone can proceed with her civil rights case against the City of Jersey City, the Jersey City Police Department, Mayor Jerramiah Healy and retired Jersey City Police Chief Robert Troy. Montone claims she was passed her up for a promotion to lieutenant, in violation of her First Amendment right to political affiliation, because she supported Lou Manzo when he ran against Healy for mayor. She claims they decided not to promote any sergeants for three years so they would not have to promote her.

The First Amendment prohibits the state and local government from discriminating against employees based on which political candidates they support. As the Third Circuit explained, to prove this type of claim an employee has to prove (1) she worked for a public agency in a position that does not require political affiliation, (2) she engaged in conduct protected by the First Amendment, and (3) her employer took an adverse action against her, such as firing her, demoting her, or skipping her for a promotion, because of her constitutionally-protected conduct. Montone meets the first two requirements since her job as a sergeant for the Jersey City Police Department does not require any political affiliation, and her efforts supporting Manzo in the mayoral election is protected by the First Amendment. The primary issue on the appeal was whether there was enough evidence for a jury to find the defendants discriminated against her because she supported Mayor Healy's opponent in the election.

The District Court dismissed Montone's case, finding there was not enough evidence to prove discrimination. But in Montone v. City of Jersey City the Third Circuit disagreed. It found there was enough evidence for a jury to find discrimination in violation of the First Amendment, including the fact that:

• Police Chief Troy made promotions to every other rank, but did not promote a single sergeant to lieutenant;
• The number of lieutenants in the police department decreased from 56 to 30 over the three year period;
• Jersey City had 66 authorized lieutenant positions, meaning it had 36 vacancies;
• Mayor Healy and Chief Troy promoted their political supporters to other positions;
• Jersey City has a history of political patronage including hiring employees who supported winning candidates;
• Two other sergeants testified that Chief Troy told them they would not be promoted because they were below Montone on the promotion list and the mayor was not going to promote Montone;
• The same two sergeants testified that Chief Troy indicated he did not have a problem with them because they did not come out against him during the election; and
• Shortly after Chief Troy retired, he met with the new police chief before he decided not to promote Montone. Two days later, Jersey City promoted twelve other sergeants to lieutenant

Continue reading "Third Circuit Reinstates Police Sergeant's Political Affiliation Discrimination Claim Against Jersey City" »

Last month, the Third Circuit Court of Appeals recognized that an employee does not need to have any evidence of discrimination before she can present her case to a jury. The Third Circuit is the federal court that handles appeals from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

The employee who brought the case, Mary Burton, worked for Teleflex Inc. as a Vice President of New Business Development. On June 3, 2008 she got into a disagreement with her supervisor, Edward Boarini. Mr. Boarini claims Ms. Burton resigned during the meeting. In contrast, Ms. Burton claims she mentioned the possibility of resigning, but did not actually resign. At the time, Ms. Burton was 68 years old.

According to Ms. Burton, she did not report to work the next two days because she was upset about the meeting. She then took a preplanned vacation. On the day she was scheduled to return to work, Teleflex sent her a letter indicating it was accepting her resignation.

After her lawyer unsuccessfully attempted to negotiate a severance package, Ms. Burton filed a lawsuit claiming the company's decision to fire her was age discrimination in violation of the Age Discrimination in Employment Act (ADEA), and gender discrimination in violation of Title VII of the Civil Rights Act of 1964. But the District Court dismissed Ms. Burton's case. It found she voluntarily resigned, and therefore could not pursue a wrongful termination claim. It also found that even if she did not intend to resign, there was no evidence the company fired her because of her age or gender, rather than because it believed she had resigned.

But on appeal, the Third Circuit reversed. It found that since there is a factual dispute whether Ms. Burton actually resigned, a jury needs to decide whose version of the events is true. It explained that a jury can conclude Ms. Burton was fired based on her testimony that she never said she was resigning, as well as the fact that she never tendered a resignation letter, never told anyone she was resigning, and the company merely took Mr. Boarini's word that she had resigned without confirming it with her.

The Third Circuit further ruled that a jury can find Teleflex's decision to fire Ms. Burton because of her age or gender even though there is no evidence of discrimination. It explained that one way an employee can prove her case is by pointing out "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the employer's explanation for terminating her. In essence, it ruled that a jury can find Teleflex lied when it claimed it believed Ms. Burton had resigned, and can conclude the reason the company lied was to cover up age or gender discrimination. The Third Circuit's opinion in Burton v. Teleflex Inc. is published, meaning it is a binding legal precedent.

Continue reading "Third Circuit Finds No Evidence of Discrimination Necessary to Prove Discrimination Case" »

The Third Circuit Court of Appeals recently affirmed a Newark police officer's $700,000 verdict in a wrongful termination case. The case was brought by Jose Montalvo, who was a police officer for the City of Newark from 1990 to 2006. On April 22, 2005, he filed an affirmative action complaint, claiming the police department started harassing him after he fired his weapon at a citizen in 2000. For example, despite Mr. Montalvo's repeated requests, the department refused to return his fire arm, and instead kept him assigned to cell block duty for longer than it had assigned anyone else to it. According to testimony, Newark assigns police officers to the cell block as a form of punishment.

At the trial, Mr. Montalvo presented evidence that Newark began further harassing him after he filed his affirmative action complaint. For instance, the police department suspended him for 21 days relating to the shooting, even though it occurred five years earlier. Ultimately, Newark fired Mr. Montalvo for making false statements during a police department investigation and disclosing confidential information about the investigation. However, Mr. Montalvo presented evidence at the trial showing the department gave less severe discipline to other police officers who were brought up on similar disciplinary charges.

At the trial, the jury found Newark fired Mr. Montalvo in retaliation for filing his affirmative action complaint, in violation of the New Jersey Law Against Discrimination (LAD), and awarded him $700,000. The LAD prohibits employers from retaliating against an employee because he complained about workplace discrimination.

Newark appealed, arguing there was not enough evidence to connect its decision to fire Mr. Montalvo to his affirmative action complaint. However, the Third Circuit rejected this argument. In Montalvo v. City of Newark, it ruled the jury's find that Newark fired Mr. Montalvo in retaliation for his affirmative action complaint was supported by the pattern of Newark antagonizing him after he filed it.

On appeal, Newark also asked the court to overturn the verdict on the basis that the Police Chief who made the decision to fire Mr. Montalvo testified that he did not even know about Mr. Montalvo's affirmative action complaint. However, the court concluded that the jury was not required to believe the Police Chief's testimony. It also explained that, even if the Chief did not know about Mr. Montalvo's affirmative action complaint, his decision to fire Mr. Montalvo still could have been retaliatory since there was evidence he relied on a "tainted" retaliatory performance evaluation prepared by another employee who did know about his complaint. Accordingly, the court affirmed Mr. Montalvo's $700,000 verdict.

Continue reading "Court Upholds Newark Police Officer's $700,000 Verdict in Retaliation Case" »

Last week I discussed Colicchio v. Merck & Co., Inc., a case involving an employee who claims her employer Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave. The employee in that case, Kerri Colicchio, also claims her employer failed to promote her because of her gender and pregnancy, and retaliated against her for objecting to violations of the New Jersey Law Against Discrimination (LAD).

The judge allowed Ms. Colicchio to proceed with her claim that the company failed to promote her to the position of Vice President of Global OE. Ms. Colicchio testified that her supervisor told her she was not being considered for that position on an interim basis expressly because she was about to go out on a maternity leave. The judge found this was not "smoking gun" evidence since the comment involved the interim position, and Ms. Colicchio was suing Merck for failing to offer her the job on a permanent basis. However, he found the comment showed the company used Ms. Colicchio's pregnancy as an important negative factor in making employment decisions about her.

The judge also found Merck's justification for its decision not to promote Ms. Colicchio was not a legitimate, non-discriminatory reason. Specifically, Merck claims it decided to consider only external job candidates for the position. The judge called this explanation "barely more than no reason at all," since the company did not indicate why it decided not to consider internal candidates. This is noteworthy, since it potentially means Merck does not have a valid defense to Ms. Colicchio's claim that it failed to promote her because of her gender and pregnancy.

However, the court dismissed Ms. Colicchio's retaliation claim. It explained that to be protected by the LAD, an objection has to either expressly or implicitly indicate that the company treated an employee differently based on a legally protected category. For example, an employee who objects to race, age, or gender discrimination would be legally protected from retaliation under the LAD. However, when Ms. Colicchio made her internal complaints, she only indicated she was being treated unfairly, without stating or implying she believe the unfair treatment was due to her gender or pregnancy. As a result, the Judge ruled that Ms. Colicchio does not have a valid retaliation claim.

Continue reading "Decision to Seek Outside Job Candidate Isn't Legitimate Reason Not to Promote Employee" »

Last month, a federal judge in New Jersey allowed a group of employees to proceed with their class action age discrimination lawsuit even though they do not claim the company hired younger employees to replace them.

In Bratek v. TD Bank, NA, four customer service representatives, Edna Bratek, Diane Deluca, Lois Skoff, and David Steinberg, claim TD Bank fired them because of their age. They were each over 60 years old when TD Bank included them in a reduction in force. They sued, claiming the company targeted older employees, in violation of the New Jersey Law Against Discrimination.

TD Bank moved to dismiss the case, claiming the employees did not set forth facts which, if true, would prove age discrimination. In particular, they argued that the lawsuit does not even allege the Bank hired younger customer service representatives to replace the older employees it fired. The Court agreed that the employees did not claim the Bank had replaced them with younger employees, but it found they could proceed with their case on another theory. It recognized that an employee can set forth a claim of discrimination in a case involving a reduction-in-force by alleging the company retained one or more younger employees to perform his job. Thus, for example, an employee can claim the company gave his job duties to younger employees who it chose not to lay off.

TD Bank also argued that even though the lawsuit named 18 customer service employees under 40 years old who the company retained after the reduction-in-force that was a small fraction of the customer service employees it retained, is statistically meaningless, and is not enough to support an inference of age discrimination. The company claimed this was particularly true since the lawsuit is a class action filed on behalf of hundreds (and potentially as many as a thousand) older customer service representatives who lost their jobs in the reduction-in-force.

The district judge rejected this argument. He recognized it would be extremely difficult for an employee filing a class action discrimination lawsuit to list the names and ages of a large percentage of the employees who the company retained. It also recognized that a lawsuit only needs to set forth facts that are compatible with discrimination to support an inference of discrimination. Accordingly, he concluded that providing the names and ages of several younger customer service representatives who the Bank retained was enough for the employees to proceed with their case.

Continue reading "New Jersey Court Permits Age Discrimination Lawsuit Because Company Retained Younger Employees" »

Late last month, the New Jersey Appellate Division ruled that ExxonMobil Research and Engineering Company may have violated New Jersey Law Against Discrimination (LAD) when it fired an employee suffering from alcoholism after she failed a breathalyzer test. The LAD prohibits employers from discriminating against employees because they are disabled. Since alcoholism is a disability, it is illegal to fire an employee because he is an alcoholic. However, the LAD permits employers to fire employees if their disabilities, such as alcoholism, prevent them from performing their jobs or create a serious health risk.

The case, A.D.P. v. ExxonMobil Research and Engineering Company, involves an employee who voluntarily informed her employer, ExxonMobil Research and Engineering Company, that she was an alcoholic and was checking herself into an inpatient rehabilitation program. Based on company policy, ExxonMobil required her to stop from using any alcohol and to undergo random breathalyzer tests for two years. The company did this even though the employee had an exceptional performance history, and there was no evidence she was ever intoxicated at work or that her drinking interfered with her job in any way. When the employee eventually failed a breathalyzer test, ExxonMobil fired her. She then sued, claiming the company committed disability discrimination, in violation of the LAD.

The Appellate Division found there was direct evidence of disability discrimination. Specifically, a manager admitted ExxonMobil required the random drug testing pursuant to company policy because the employee revealed she is an alcoholic, rather than because of anything relating to her job performance. The Court found this policy to be discriminatory since it shows hostility toward alcoholics. Given this direct evidence of discrimination, the court ruled that ExxonMobil has the burden to prove it would have fired the employee irrespective of her disability. Usually the employee has the burden to prove discrimination.

The Court explained that companies have the right to fire employees whose disabilities prevent them from adequately performing their jobs. However, to establish this defense, a company needs to prove the particular employee could not perform her job. In this case, the court found no evidence that the employee was unable to perform her job despite her alcoholism.

The Court also explained that companies can fire employees whose disabilities create a serious health risk. But to establish this defense the company needs to prove, with a reasonable degree of certainty, there is a probability the employee's disability will cause a substantial injury to the employee or someone else in the workplace. To meet this test the employer has to show more than the fact that the employee has a specific disability. It has to prove the disability was likely to pose a safety risk with respect to the particular employee.

For more information, please see our previous article, When Can A Private Company Require Random Drug Testing in New Jersey?

Continue reading "Targeting Alcoholic Employees for Drug Testing Can Violate New Jersey Law Against Discrimination" »

The Third Circuit Court of Appeals recently ruled that the United States Equal Employment Opportunity Commission (EEOC) is entitled to subpoena a broad range of information during its investigations into possible violations of the Americans with Disabilities Act (ADA). The Third Circuit is a federal appellate court that handles cases that started in the District of New Jersey.

The appeal stems from an investigation the EEOC is conducting regarding Kroger grocery store's alleged violation of the Americans with Disabilities Act (ADA). The ADA prohibits companies from using tests when hiring employees if they "screen out or tend to screen out" disabled job candidates, unless the tests are "'job-related for the position in question" and "consistent with business necessity." Kroger uses a Customer Service Assessment test that was written for it by another company, Kronos Incorporated, to screen its job applicants. Kroger decided not to hire a job applicant, Vicky Sandy, after she scored poorly on that test. Ms. Sandy is hearing and speech impaired.

During its investigation into Ms. Sandy's disability discrimination claim, the EEOC sent a subpoena to Kronos seeking information about how the test impacts disabled job applicants. Kronos refused to respond to the subpoena. The EEOC then filed a motion to enforce the subpoena in federal district court. The district court eventually limited the information the EEOC was entitled to receive to information relating to the state in which Ms. Sandy applied and the job titles for which she applied during an 18 month period. In 2010, the Third Circuit reversed that decision, and removed those limitations. It then sent the case back to the district court to modify its order.

But the EEOC again disagreed with the order the district court issued, and appealed to the Third Circuit. This time, it objected to a limitation that it was only entitled to information from any research or studies about the test's impact on disabled individuals that Kronos "relied upon in creating or implementing the test for Kroger."

In Equal Employment Opportunity Commission v. Kronos, Inc., the Third Circuit again agreed with the EEOC. It explained that the EEOC is entitled to subpoena information during its investigations if it can show that (1) the investigation has a legitimate purpose; (2) the information requested is relevant to that purpose; (3) the EEOC does not already have the information it is requesting; (4) the EEOC has complied with its own administrative requirements; and (5) the information it requested is not unreasonably broad or burdensome. Applying that test, the court concluded that the EEOC was entitled to the information it was seeking whether or not Kronos specifically considered it with respect to the test it developed for Kroger. It therefore instructed the district court to remove that limitation from its order.

Continue reading "Third Circuit Recognizes EEOC'S Broad Power to Investigate Employment Discrimination Claims" »

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.

The 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.

Continue reading "New Jersey Imposes New Requirements Under Equal Pay Act" »

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.

The 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.

Continue reading "Internal Investigations of Discrimination Complaints Might Not Be As Confidential As You Expect" »

A federal judge in New Jersey recently ruled that employees can sue the Port Authority of NY & NJ under the New Jersey Law Against Discrimination ("LAD"). The decision is noteworthy because previous cases have ruled that the Port Authority cannot be sued under state employment laws. The LAD is an employment law that prohibits many different kinds of workplace discrimination, harassment and retaliation in New Jersey.

The case was filed by Donald Burke, a lawyer for Port Authority for 26 years. Mr. Burke claims the Port Authority retaliated against him after he (1) refused to lower the performance ratings of two older female employees, Shirley Spira and Dolores Ward, who claimed the Port Authority was underpaying them due to their age and gender, and (2) refused to raise the performance ratings of two of their male peers. He also alleges he objected when Ms. Spira and Ms. Ward were unfairly disciplined, and again when they were fired in a supposed reduction in force.

The retaliation Mr. Burke claims he experienced includes his boss disciplining him for supposedly not doing his job properly and accusing him of not being a "team member." He also claims his boss threatened to fire him because he objected to the Port Authority's decision to fire Ms. Spira and Ms. Ward. He further alleges the Port Authority effectively demoted him by eliminating his position as its top litigator, moved his office to an area filled with older lawyers that employees refer to as "death row," and stopped providing him the resources he needed to do is job. Eventually, the Port Authority recommended firing Mr. Burke. Instead, he resigned. He claims the Port Authority constructively discharged him, meaning it forced him to resign by harassing him and retaliating against him. He eventually filed a lawsuit asserting numerous claims against the Port Authority, including a retaliation claim under the LAD.

The Port Authority is a bi-state agency that was jointly created by New York and New Jersey. The New Jersey Supreme Court has previously ruled that bi-state agencies only can be sued under a state law if (1) the law creating the Port Authority specifically allows it, or (2) the state law is "substantially similar" to a law it the other state. Other cases have ruled that since the LAD is not substantially similar to the New York Human Rights Law (NYHRL), the Port Authority cannot be sued under either the LAD or the HYHRL.

However, in Burke v. Port Authority of NY & NJ, the Court did not discuss whether the LAD and the NYHRL are substantially similar laws. Instead, it ruled that since the purpose of the LAD is to prevent discrimination, and there is nothing in it saying otherwise, the LAD must have been intended to cover the Port Authority. The Court also relied on a 1951 amendment to the law that created the Port Authority, which says that New York and New Jersey agree to allow the agency to be sued for "tortious acts" (meaning personal injuries and similar wrongful acts) in the same way as a private corporation. It therefore allowed Mr. Burke to proceed with his LAD claim.

Continue reading "Court Allows Lawyer to Pursue Claim Against Port Authority Under New Jersey Law Against Discrimination" »

On July 27, 2012, a federal judge in New Jersey ruled that submitting an intake questionnaire was enough for an employee to file a discrimination claim with the United States Equal Employment Opportunity Commission (EEOC). The case was filed by Theresa Walker-Robinson, a branch manager for JP Morgan Chase Bank in Lyndhurst, New Jersey. Ms. Walker-Robinson is African-American and 46 years old. She claims her District Manager, Christopher Zardavets, announced he was going to "change the face of the region," and then began to visit bank branches whose mangers were African American women over 40 years old. Ms. Walker-Robinson complained about Mr. Zardavets' conduct, but he allegedly continued to come to her branch and make discriminatory comments about her and unfairly criticized her job performance. JP Morgan fired Ms. Walker-Robinson less than a month after she complained to Mr. Zardavets' boss about the harassment.

Ms. Walker-Robinson filled out and submitted two separate EEOC intake questionnaires. On the forms she claimed JP Morgan fired her because of her age, in violation of the Age Discrimination in Employment Act (ADEA). However, she never filled out or submitted the EEOC's Charge of Discrimination form.

After the EEOC sent Ms. Walker-Robinson a "right to sue letter," she filed a lawsuit including claims of age discrimination, race discrimination, gender discrimination, hostile work environment harassment, and retaliation. JP Morgan then asked the judge to dismiss her lawsuit because she did not submit the EEOC's Charge of Discrimination form.

Under federal law, employees in New Jersey have to file a "charge" of discrimination with the EEOC within 300 days after being fired as a requirement to file a discrimination lawsuit under the ADEA, the Americans with Disabilities Act (ADA), or Title VII of the Civil Rights Act of 1964. However, none of those laws defines the term "charge," or specifically require employees to use the EEOC's Charge of Discrimination form.

In Walker-Robinson v. J.P. Morgan Chase Bank, N.A. (July 27, 2012), the judge ruled that Ms. Walker-Robinson's EEOC questionnaire was a "charge of discrimination. She primarily relied on an EEOC regulation which says that a charge of discrimination must include:

1. Full name, address and phone number of the person making the charge;
2. Full name and address of the person (or company) the charge is against;
3. Facts supporting the discrimination claim, including relevant dates;
4. Number of employees working for the employer (if known); and
5. A statement whether the employee has brought a claim about the same discriminatory practice with any state agency.

The judge also relied on a United States Supreme Court case that says a charge of discrimination also has to ask the EEOC to take action to remedy the discrimination. The judge ruled that Ms. Walker-Robinson's EEOC questionnaires met all of those requirements.

The judge also permitted Ms. Walker-Robinson to pursue her claims of gender discrimination, race discrimination, harassment, and retaliation. Even though Ms. Walker-Robinson did not mention those claims in her EEOC questionnaires, the judge found they were related to the same facts as her age discrimination claim, and the EEOC should have addressed those claims during its investigation. The judge therefore denied JP Morgan's motion to dismiss Ms. Walker-Robinson's case.

Continue reading "Filing Questionnaire Can Be Enough to File Discrimination Claim With EEOC" »

Recently, a federal judge in the District of New Jersey allowed an employee to continue with his disability discrimination case, largely based on testimony that his boss told him he was "too sick" to do his job. The case, Estate of Fajge v. Dick Greenfield Dodge, Inc., was filed on behalf of Henry Fajge, a car salesman for Dick Greenfield Dodge.

The Facts of the Case

Before he started working for the dealership, Mr. Fajge had a history of mini-strokes (or transient ischemic attacks), coronary artery disease and hypertension, and had suffered a heart attack.
Three weeks after he started the job, he suffered another mini stroke. He was taken to the emergency room by ambulance, and remained in the hospital for five days before his doctor cleared him to return to work.

Within a week after he returned to work, the dealership had to call another ambulance for Mr. Fajge because he was not feeling well. After examining him, the paramedics concluded he was fine. According to Mr. Fajge, his boss called him at home the next day, and said he did not think he was strong or healthy enough to continue doing his job, and as a result they were going to have to "part company." Although his boss denied making that statement, he admitted he called Mr. Fajge to ask him how he was doing. When his boss was asked at his deposition if he calls other employees at home when they are out sick, he answered "No. But most employees don't like nearly drop over dead in front of me two times in a row in less than a month."

Approximately two weeks later, the dealership fired Mr. Fajge. It claimed it did so because of his job performance. For example, his supervisors testified that he wasted a lot of time in his office instead of trying to sell cars, and he was often on the internet, including occasionally looking at pornography at work.

Mr. Fajge then filed a lawsuit in which he alleged the dealership fired him because he is disabled, in violation of the New Jersey Law Against Discrimination (LAD). Unfortunately, Mr. Fajge passed away while the case was pending. However, his estate decided to pursue his discrimination lawsuit on his behalf.

The Judge's Ruling

Without deciding whether Mr. Fajge actually had a disability, the Judge found he was protected by the LAD because the dealership perceived him to be disabled. The LAD prohibits employers from discriminating against employees who they believe are disabled, whether or not they are actually disabled. The Judge also found there was enough evidence for a jury to find the dealership fired Mr. Fajge because it believed he was disabled. This includes Mr. Fajge's testimony that his boss said he did not think he was strong enough to perform his job, and his boss's testimony that Mr. Fajge twice nearly dropped dead in front of him. The Judge also relied on a company document that said it fired Mr. Fajge because of his "inability to work the hours required," and inconsistencies in the dealership's evidence about Mr. Fajge's supposed poor performance. The Judge's ruling paves the way for the case to go to trial, where a jury will decide whether the dealership fired Mr. Fajge because of an actual or perceived disability.

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