New Jersey Employment Lawyer Blog

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."

Continue reading "New York Employers Must Provide Same Bereavement Leave to Same-Sex Committed Couples" »

Among other things, the Family & Medical Leave Act (FMLA) allows covered employees to take off up to 12 weeks from work per year to care a newborn, newly adopted or placed child, or to care for a son or daughter with a serious health condition. However, the FMLA does not indicate whether someone who provides care for a child, but is not the child's biological or legal parent. Among other situations, this arises in same sex marriage and civil union in which only one person is the child's legal parent or guardian.

To answer this question, on June 22, 2010 the United States Department of Labor (DOL)'s Deputy Administrator issued a formal interpretation of the term "son or daughter" under the FMLA. The DOL indicated that someone is an employee's son or daughter if they provide either financial support or day-to-day care for the child.

The DOL reached this conclusion because the FMLA defines "parent" to include someone who acts "in Loco parentis." Someone acts in Loco parentis if they fill the normal obligations of a parent, but are not the child's biological or adoptive parent. Someone who acts in Loco parentis is entitled to take an FMLA to take care of the child.

The DOL provided an example that an individual who provides day-to-day care for his or her partner's child could be considered the child's parent under the FMLA, even if he or she has no legal or biological relationship to the child. It also indicates that this can be true irrespective of whether the child has a biological parent in their home, or already has both a mother and a father.

Continue reading "Department of Labor Says FMLA Covers Non-Traditional Parents" »

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.

Several weeks later, Merrill Lynch fired Mr. Kwiatkowski for insubordination. Although Mr. Kwiatkowski admitted that he had been insubordinate, he contended that the punishment was too severe, and that Merrill Lynch really fired him because of his sexual orientation.

After he was fired, Mr. Kwiatkowski experienced panic attacks, sleeplessness, nightmares, depression, upset stomach, loss of appetite, shortness of breath, chest pain, weakness, and emotional instability. His psychiatrist diagnosed him with post-traumatic stress disorder.

Prior to the appeal, the trial court had dismissed the case, finding that since the decisionmaker, Ms. Givas, did not even know that Mr. Kwiatkowski was gay, Merrill Lynch could not have possibly fired him based on his sexual orientation.

But the New Jersey Appellate Division disagreed, finding Ms. Givas' decision was tainted by Ms. Wonder's recommendation to fire him, which a jury reasonably could have concluded was motivated by his sexual orientation. The Court relied on the fact that, since Ms. Givas had no actual knowledge of Mr. Kwiatkowski's job performance or the misconduct that caused Ms. Wonder to recommend firing him, she must have relied heavily on information from Ms. Wonder, including her recommendation to fire him. Accordingly, even though Ms. Givas made the ultimate decision to fire Mr. Kwiatkowski, a jury could reasonably conclude that Ms. Wonder caused Merrill Lynch to fire him for a discriminatory reason.

The court noted that there are different names for this theory which other courts have used in different contexts, including "subordinate bias," which occurs when a decisionmaker relies on biased discriminatory information or opinions from a subordinate, the "rubber stamp," which occurs when the decisionmaker merely approves a subordinate's discriminatory decision, and the "cat's-paw," which occurs when a biased subordinate uses the decisionmaker as a pawn in a scheme to discriminate against the employee.

These theories of liability recognize that termination decisions often can be complex, and frequently someone other than the final decisionmaker can influence employment decisions. At the same time, they still require the employee to prove that discrimination made a difference in the termination decision.

It is important to note that the Kwiatkowski case is unpublished, meaning the Appellate Division's decision is not legally binding on other New Jersey courts. However, courts are still likely to consider it when they decide similar cases under the New Jersey Law Against Discrimination.

The lawyers of the employment law and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

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. 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.

Mr. Kwiatkowski alleged that his immediate supervisor, Theresa Wonder, interrupted Mr. Kwiatkowski's conversation with a coworker and, for no apparent reason, said "I can't believe you. I was standing right there! How dare you be so unprofessional!" before storming off. He further claimed that a few minutes later, Ms. Wonder passed him again and called him a "stupid fag" under her breath. Not surprisingly, Mr. Kwiatkowski was shocked and highly offended by her derrogatory comment. When he left work that day, his knees buckled, he began to hyperventilate, and he no longer felt safe speaking to anyone at work.

In contrast, Ms. Wonder denied ever making the discriminatory comment, and contended that she did not even know if Mr. Kwiatkowski was gay. She claimed that when Mr. Kwiatkowski was talking to a fellow employee, she heard him refer to her as a "bitch." She told him this was inappropriate language, and he became irate and threw his hands up in the air. She then asked to speak with him in a conference room, and at that meeting told him she was offended by his remark and warned him that the department had zero tolerance policy.

Before the case reached the appellate court, the trial court ruled that a jury did not need to decide whether Ms. Wonder made that discriminatory comment because, even if she had, it did not rise to the level of actionable harassment. Specifically, the lower court concluded that although the comment was extremely derogatory and offensive to gay men, and Ms. Wonder made the comment because of Mr. Kwiatkowski's sexual orientation, it was not so severe or pervasive that a reasonable person would believe the conditions of his employment had been altered and his working environment was hostile and abusive. In other words, the lower court found it was bad, but not bad enough to be unlawful harassment.

The Appellate Division disagreed. Although it noted that it is the "rare and extreme" case in which a single incident is so severe that it can create a hostile work environment, the phrase "stupid fag" is a statement that would make someone in Mr. Kwiatkowski's position "question his identity and his decision to identify himself as a gay man in a straight world." Accordingly, the appellate court reversed the lower court's decision, and sent the case back to be decided by a jury.

In the same decision, the Appellate Division reviewed the trial court's decision to dismiss Mr. Kwiatkowski's claim that Merrill Lynch fired him because of his sexual orientation. That aspect of the decision is discussed in a seperate article, which you can read here.

The lawyers of the employment law and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.