New Jersey Employment Lawyer Blog

Earlier this month, New Jersey's Appellate Division reversed a trial court's decision to dismiss two employees' sexual harassment case against their employer, the Mercer County Youth Detention Center. In Wallace v. Mercer County Youth Detention Center, the Appellate Division ruled that a jury needs to decide whether the employer's anti-harassment policy was effective. Employers can be held liable under the New Jersey Law Against Discrimination (LAD) for sexual harassment committed by a coworker if the employer did not have an effective anti-harassment policy.

Moneck Wallace and Tina Stewart, two female employees who worked for the Mercer County Youth Detention Center, claim a male coworker, Jerel Livingston, sexually harassed them. Ms. Wallace and Ms. Stewart both complained about the sexual harassment. After conducting an investigation, the employer concluded that there was insufficient evidence to support their claims. The two women then filed a sexual harassment lawsuit.

The trial judge dismissed the case even though it found that Ms. Wallace and Ms. Stewart had enough evidence to prove that Mr. Livingston sexually harassed them. However, it concluded that their employer could not be held liable for the harassment because the alleged harasser was not a supervisor, and Ms. Wallace and Ms. Stewart did not have any evidence that their employer was aware of the harassment but failed to respond to it.

The Appellate Division disagreed with the trial court's decision to dismiss the case. It explained that an employee might be able to prove her employer is liable for harassment committed by a supervisor or coworker if the employer did not have an effective anti-harassment policy.

The Appellate Division concluded that Ms. Wallace and Ms. Stewart had enough evidence to allow a jury to conclude that Mercer County did not have an effective anti-harassment policy. This included evidence that it:

1. Did not effectively inform its employees about its sexual harassment policy;
   
2. Did not provide adequate anti-harassment training to its employees;
   
3. Did not effectively enforce its anti-harassment policy;
   
4. Did not conduct a sufficient investigation into the alleged sexual harassment;
   
5. Did not use clear criteria when it evaluated whether the sexual harassment claim was substantiated; and
   
6. Did not have effective procedures to evaluate whether its sexual harassment policy was effective.

Continue reading "New Jersey Court Rules Jury Must Decide If Employer is Responsible for Coworker's Sexual Harassment" »

On August 29, 2011, in Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, New Jersey's Appellate Division reversed a trial court's decision dismissing Thomas Bower's lawsuit against his former employer, the New Jersey Judiciary. Thomas Bowers, an African-American, worked for the New Jersey Judiciary as an Information Technology Analyst. He claimed the Judiciary failed to promote him to Acting IT Manager and subjected him to a hostile work environment because of his race. Mr. Bowers was the only African-American in Monmouth County's IT Division. In fact, there were no other African-American IT managers in the entire New Jersey Judiciary, and only one other racial minority, an Asian Indian.

Beginning in July 2005, Mr. Bowers' supervisor took an extended medical leave. Shortly after, the Judiciary asked Mr. Bowers to take over the duties of IT Manager. This decision was subsequently recommended by Monmouth County's Assignment Judge. Mr. Bowers performed the duties of the IT supervisor for approximately 8 months.

But when the Judiciary sought to formally appoint him as its Acting IT Manager, the Assistant Director of Technical Services and Operations, Jonathon Massey, gave a very negative opinion of Mr. Bowers, including claiming he "doesn't understand simple technical things," he "is lazy and stands around and watches others do the work," and that another supervisor described him as a "cocky, arrogant, lazy, weasel, creep" who "does what he wants, doesn't tell the truth" and has a "chip on his shoulder." Not surprisingly, Mr. Bowers was not formally named the Acting IT Manager. However, informally he continued to perform the responsibilities of the IT Manager until April 2006, when the Judiciary named Troy Fitzpatrick its new permanent IT Manager.

After Mr. Fitzpatrick became the IT Manager, he gave Mr. Bowers assignments that were normally given to lower level and less senior IT employees, like answering Help Desk calls and creating a Help Desk manual. Mr. Fitzpatrick told Mr. Bowers that he could not assign work to anyone else, and also told him he could not leave his desk for any reason unless he found someone else to cover the Help Desk. Mr. Fitzpatrick also sought information from other employees about Mr. Bowers' work ethic, and was always short and curt when he spoke to Mr. Bowers, as if he did not want to speak to him. In comparison, Mr. Fitzpatrick treated a newly hired white male employee much better than Mr. Bowers, such as giving him less work and not limiting his ability to leave his desk.

The trial court dismissed Mr. Bowers' race discrimination and harassment claims because he was not subject to racial epithets and there was no direct evidence of race discrimination, he did not have enough evidence to prove either of those claims. But the Appellate Division disagreed. It explained that "discrimination rarely rears its ugly head directly. Rather, it typically manifests itself in subtle ways." In particular, it found that a jury could find that Mr. Massey's extremely negative recommendation was false and discriminatory. It noted that Mr. Massey admitted he knew very little about Mr. Bowers. Instead, it ruled that only a jury can decide whether the Judiciary's decision not to make Mr. Bowers its Acting IT Manager was discriminatory.

Next week, I will discuss Mr. Bowers' retaliation claim. In a subsequent article, I will discuss his claim that the judiciary failed to accommodate his disability.

Continue reading "IT Professional Given Second Chance in Race Discrimination Case Against New Jersey Judiciary" »

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from harassing and otherwise discriminating against employees based on their race, national origin, color, religion, and sex. Under Title VII, when a supervisor harasses an employee, the company often has a defense if it can prove (1) it used reasonable care to prevent and promptly correct harassment, such as by having an anti-harassment policy, and (2) the employee unreasonably failed to take advantage of an opportunity to stop the harassment, such as by not objecting to it under the company's anti-harassment policy. This defense is often referred to as the Faragher/Ellerth defense, based on the names of the two United States Supreme Court cases that created it.

But would it be reasonable for an employee to complain to the harasser, and nobody else? According to Second Circuit Court of Appeals, the federal appellate court which handles appeals from New York, whether that is reasonable depends on the circumstances of the case.

Specifically, in Gorzynski v. JetBlue Airways Corp., crewmember Diane Gorzynski claims her former employer, JetBlue Airways Corporation, subjected her to sexual harassment. She says her supervisor, James Celeste, sexually harassed her by making massaging gestures with his hands; saying he wanted to massage breasts; indicating he wanted to suck on a particular woman's breasts; telling a crewmember that his wife was going to a "sex toy" party; asking another female crewmember if she had "gotten enough loving" over the weekend; announcing that Ms. Gorzynski had been a table dancer in the past; announcing that another female crewmember was a former pin-up girl; grabbing Ms. Gorzynski and other female crewmembers around the waist; attempting to tickle Ms. Gorzynski and other female crewmembers; looking at women as if he were mentally undressing them; and frequently making inappropriate sexual comments and gestures at work. The Second Circuit recognized that Mr. Celeste's behavior could have created a sexually hostile work environment for Ms. Gorzynski.

JetBlue has a formal sexual harassment policy, which is included in its employee handbook. Under that policy, if a crewmember believes she has been the victim of sexual harassment, she is required to tell her immediate supervisor, the Human Resources Department, or another member of management about it. In accordance with that policy, Ms. Gorzynski repeatedly objected to Mr. Celeste about his sexual harassment. However, she did not complain to anyone else when he continued harassing her. Ms. Gorzynski explained that she did not complain to anyone else because the other supervisor in her office was not receptive to her complaints about other problems at work, and the Human Resources Department had retaliated against another employee who complained about discrimination at work.

Initially, the United States District Court for the Western District of New York dismissed Ms. Gorzynski's sexual harassment claim, ruling that she was unreasonable because she did not complaint about the harassment to another supervisor or JetBlue's Human Resources Department.

However, the Second Circuit disagreed. It ruled that a jury has to decide whether Ms. Gorzynski acted reasonably under the circumstances. In doing so, it recognized "the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations." It held that it depends on the circumstances of each individual case whether it was unreasonable for an employee not to complain to someone else if the harassment continues after her first complaint. It concluded that a jury could find that under the circumstances it was reasonable for Ms. Gorzynski not to have objected to anyone other than the harasser about the harassment.

Sexual harassment at work violates New Jersey, New York, and federal employment laws. It can be very difficult to decide whether and how to object about sexual harassment at the workplace. If you have experienced sexual harassment or another violation of your employment law rights, you should consider contacting an experienced employment law attorney to discuss your options.

On February 8, 2011, New Jersey's Appellate Division ruled that an employee is entitled have a jury decide whether to award punitive damages against her former employer. Prior to the appeal, a jury had awarded the plaintiff, Judith Rusak, $80,108.80 in wages she lost because she experienced sexual harassment and retaliation at work. However, the trial judge did not let the jury decide whether to award punitive damages against Ms. Rusak's employer, Ryan Automotive.

Punitive damages are intended to punish a defendant for violating the law. As the Appellate Division explained, punitive damages are available against an employer under the New Jersey Law Against Discrimination (LAD) only if the company's upper management either actually participated in or was willfully indifferent to the discrimination, harassment, or retaliation, and the conduct was "especially egregious." An employer's actions are "especially egregious" if it engaged in an evil-minded act with a willful and wanton disregard for the employee's legal rights.

Applying that law, the court in Rusak v. Ryan Automotive, LLC concluded that a jury could find the sexual harassment Ms. Rusak experienced was especially egregious. Specifically, the court ruled that a jury should decide whether Ms. Rusak is entitled to punitive damages based on sexual harassment and retaliation that included supervisors telling Ms. Rusak sexually explicit stories about executives having sex with other executives' wives; leaving graphic pictures of female genitalia on her desk and sending copies of them to her by e-mail; sending pornography to her at work; calling her a "dumb . . . stupid blonde;" insulting and making crude comments about her; yelling and screaming at her; telling her not to come back to work; taking away her telephone and computer; removing her name from a list of employees eligible for annual awards; telling her she was going to be fired; and other similar abusive behavior.

Continue reading "Jury To Decide If Employer Must Pay Punitive Damages in Sexual Harassment Case" »

The Sexual Harassment
Last week, the New Jersey Appellate Division clarified what a company must prove before its anti-harassment policy can protect it from a sexual harassment claim. The case, Allen v. Adecco, involves Jessica Allen, an employee who worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) through an employment firm, Adecco. According to Ms. Allen, her supervisor, Jacques Coles, sexually harassed her. For example, she says Mr. Coles made sexual comments to her, commented about her clothes, asked about her dates, told her he wanted to date her, described her lips and breasts, described how he thought she would act during a sexual encounter, described a sexual fantasy involving her, used graphic and vulgar language, touched her back, thighs and buttocks, pulled her undergarment, brushed against her, called her "sexy," and referred to himself as her "future husband."

Ms. Allen's Objections to the Harassment
Ms. Allen also says she objected to Mr. Coles' harassment. In response, he claimed she wanted him, and liked what he was doing. When Ms. Allen told Mr. Coles she was going to report the harassment, he told her that nobody would believe her and she would lose her job if she reported him. Based on those threats, Ms. Allen did not report Mr. Coles' sexual harassment for more than a month.

Within hours after Ms. Allan finally filed a complaint about the sexual harassment, UMDNJ transferred Mr. Coles to another position in the same building. However, Mr. Coles continued to harass her and began to retaliate. UMDNJ eventually transferred Ms. Allen to a new position in another building, and the harassment stopped.

UMDNJ's Anti-Harassment Policy
The trial court dismissed Ms. Allen's case, finding that because UMDNJ had an anti-harassment policy and stopped the harassment soon after Ms. Allen complained, the company was not legally responsible. However, the New Jersey Appellate Division disagreed, and instead ruled that a jury should decide whether UMDNJ's anti-harassment policy was "effective" and "active." Under New Jersey law, only effective and active anti-harassment policies provides a company with a complete defense to sexual harassment committed by one of its supervisors.

According to the Appellate Division's decision, an anti-harassment is "effective" and "active" only if it:

• Is published or provided to employees;
• Requires anti-harassment training;
• Is completely committed to intolerance of harassment;
• Is effective in prohibiting harassment;
• Includes formal and informal complaint structures;
• Has an effective and practical grievance process;
• Includes ways for the employer to confirm the policy and complaint procedures are working properly; and
• Workers, supervisors, and managers are trained how to recognize and prevent unlawful harassment.

The Appellate Division concluded that a jury needed to decide whether UMDNJ's anti-harassment policy met these requirements. As a result, it sent the case back for a trial at which a jury can decide whether UMDNJ is liable for Mr. Coles sexually harassing Ms. Allen.

Continue reading "Jury Must Decide Whether Anti-Harassment Policy Protects Employer From Sexual Harassment Claim" »

Earlier this year, New York State's highest court ruled that, under the New York City Human Rights Law (NYCHRL), employers are strictly liable for harassment and discrimination committed by supervisors. The case, Zakrzewska v. The New School, concludes that an affirmative defense available to employers under federal anti-discrimination laws does not apply under the NYCHRL.

The case involves Dominika Zakrzewska, a student at The New School who also worked part time in the school's Academic Computing Center. Ms. Zakrzewska claims her immediate supervisor, Kwang-Wen Pan, sent her harassing emails and otherwise sexually harassed her. She eventually complained to school officials about the harassment. She also claims Mr. Pan began to secretly monitor her Internet use at work, in retaliation for her accusing him of sexual harassment. Ms. Zakrzewska sued Mr. Pan and The New School in the United States District Court for the Southern District of New York, alleging sexual harassment and retaliation in violation of the NYCHRL.

As the New York Court of Appeals explained, under federal anti-discrimination laws a company can avoid liability for harassment committed by one of its supervisors if it can prove that: (1) the employee did not suffer an adverse employment action, such as being fired, demoted, or given an unfavorable work assignment for a discriminatory reason, (2) the company took prompt and reasonable care to prevent and correct the harassment once it learned about it, and (3) the employee unreasonably failed to use an opportunity the employer provided to help prevent or correct the harassment, such as filing a complaint under the company's anti-discrimination policy. This defense, which comes from the United States Supreme Court's decisions in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, is known as the Faragher-Ellerth defense.

In Zakrzewska, the District Judge asked the United States Court of Appeals for the Second Circuit whether the Faragher-Ellerth defense is available under the NYCHRL. The Second Circuit then asked the New York Court of Appeals to answer the same question. The Court of Appeals concluded that the defense is not available under NYCHRL. Rather, under the NYCHRL employers are strictly liable for harassment committed by their managers and supervisors. This means a company can be held liable for harassment by a supervisor even if the employee who was harassed never reported it and the company was unaware the harassment occurred. The Court of Appeals also indicated that employers can be held liable for harassment by non-supervisors if it knew or should have known about the harassment, but either permitted it to happen or failed to immediate take appropriate actions to stop it.

Continue reading "Employers Strictly Liable for Supervisors' Sexual Harassment Under New York City Human Rights Law" »

On June 29, 2010, the Court of Appeals for the Second Circuit, a federal appellate court which handles federal appeals from New York, ruled that a supervisor's death threats to an employee can be evidence to support a sexual harassment case. The case, Kaytor v. Electric Boat Corporation, involves Sharon Kaytor's allegations that her boss, Daniel McCarthy, sexually harassed her. Some of Ms. Kaytor's allegations are sexual in nature. For example, she claims Mr. McCarthy complimented her clothing, told her she looked good for a woman her age, stared at her body, leered at her, made it clear he "had designs" on her, told the entire office she had a "flat ass," gave her a pussy willow bush as a gift for Administrative Professional's Day, said she was about to "spread her legs" for her doctor, and referred to her upcoming appointment with her gynecologist as "going where every man wanted to be." But some of Ms. Kaytor claims are not sexual at all, and have no obvious connection to the fact that she is a woman. Specifically, she claims McCarthy told her he wanted to choke her and that he wanted to see her in a coffin, at least six times each.

The trial court dismissed all of Ms. Kaytor's claims before her case could get to a trial, finding she had not proven the sexual harassment was severe or frequent enough to create a hostile work environment. It did so partially because it did not count the death threats as part of her sexual harassment claim, since they were not sexual in nature. The trial court also dismissed Ms. Kaytor's claim that the company retaliated against her when it transferred her to work for another supervisor the day after she complained to the Human Resources (HR) department about the harassment, and in that new position took away some of her job responsibilities, gave her very little work to do, changed her work hours, isolated her, and repeatedly summoned her to unnecessary meetings with HR after she complained to HR about the sexual harassment.

But the Second Circuit disagreed. It ruled that although an employee with a sexual harassment claim must prove the harassment was based on her gender, the harassment does not necessarily have to be based on sexual desire. As a result, although Mr. McCarthy's death threats were not sexual and did not refer to Ms. Kaytor's gender, when considered together with all of the other evidence of sexual harassment, a jury could find he threatened her because she is a woman. The Court reached this conclusion even though Mr. McCarthy also threatened to choke a male employee, since otherwise a male employee could get away with sexual harassment by occasionally harassing male workers even though his real targets are women.

The Court also found that Ms. Kaytor should have an opportunity to prove her retaliation claim. It ruled that a jury could find that the company, in effect, demoted her when it reassigned her work and reduced her job responsibilities right after she complained to HR. A demotion can be retaliatory, even when it does not lower an employee's salary or job title, if it is bad enough to discourage other reasonable employees from coming forward with discrimination or harassment claims. As a result, the appellate court concluded that although the company claims it transferred Ms. Kaytor to separate her from her manager while it was investigating her sexual harassment claim, a jury could find that the company was harassing her. Accordingly, the Second Circuit sent Ms. Kaytor's case back to the lower court, for a trial.

Continue reading "Federal Court Rules Death Threats Can Support Sexual Harassment Claim" »

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.

Continue reading "New Jersey Court Allows Harassment Claim Based on Relatively Minor Acts" »

Many employment law cases involve employees who are fired in violation of their legal rights. However, companies are often too smart to fire an employee for an illegal reason, and instead try to force them to quit.

Courts undersand this reality, and have a name for it: a "constructive discharge." A constructive discharge is when, instead of firing an employee, a company makes her job so miserable that she is forced to quit.

The Third Circuit recently discussed how an employee can prove a constructive discharge in Colwell v. Rite Aid Corporation. In that case, Ms. Colwell claimed Rite Aid forced her to resign because of her disability, in violation of the Americans with Disabilities Act (ADA), and because of her age, in violation of the Age Discrimination in Employment Act (ADEA). The facts of Colwell are explained in a previous article which discusses a different legal issue -- that employers can be required to change an employee's work shift to accommodate the employee's disability.

As the Third Circuit explains in Colwell, to prove a constructive discharge an employee must show that the conditions at work were so unpleasant or difficult that a reasonable person would have felt compelled to resign. It then lists relevant factors to determine whether an employee has proved that she suffered a constructive discharge. Those factors include whether the employer:

1. threatened to fire the employee, or suggested she should resign or retire;


2. demoted the employee;


3. reduced the employee's salary or benefits;


4. transferred the employee to a less desirable position;


5. changed the employee's job responsibilities; or


6. gave the employee an unsatisfactory job evaluations.

The Third Circuit found that Ms. Colwell could not prove any of those factors. Rather, she claimed Rite Aid had isolated her from other employees, called her "slow," and would not allow her to work on the store floor like other employees. The Third Circuit found those facts did not make Ms. Colwell's workplace so unbearable that a reasonable person would have felt compelled to resign. As a result, it dismissed her constructive discharge claim.

It is important to understand that not every constructive discharge is legally actionable. Rather, an employee has to prove the constructive discharge was because of an illegal reason. For example, a constructive discharge could be actionable if a company forces an employee to resign because of her gender, age, race, pregnancy, or religion, or in retaliation for the employee doing something that is legally protected.

Constructive discharge cases can be challenging to prove because it can be difficult to prove that any reasonable person would have felt they had no choice other than to resign. However, employees whose cases do not meet the constructive discharge standard often have hostile work environment harassment cases. For example, although the Third Circuit found that Ms. Colwell could not prove she was constructively discharge, it might have ruled differently if she had instead claimed that Rite Aid harassed her because of her disability and her age.

Earlier this year, the New Jersey Supreme Court ruled that an employer can violate the New Jersey Law Against Discrimination if it retaliates against an employee after it fires him. The Appellate Division decision reached the same conclusion in 2008, as discussed in a previous article.

The New Jersey Law Against Discrimination prohibits employment discrimination, including harassment and discrimination based on gender, race, age, disability and religion. It also includes a provision that makes it unlawful for anyone to retaliate against someone because they objected to another actual or apparent violation Law Against Discrimination.

The case, Roa v. LAFE, involved a husband and wife who worked for Gonzalez and Tapanes Foods, Inc. (G&T), a New Jersey corporation which does business under the name LAFE Foods. The wife, Liliana Roa, claimed G&T's Vice President, Marino Roa, had been involved in extramarital affairs with two other G&T employees. Liliana's husband, Fernando Roa, eventually told Marino's wife about the affairs. According to Fernando and Liliana, Marino then began a campaign of harassment against them, attempted to make their work lives miserable and threatened to fire both of them. When Fernando told G&T's President that Marino was sexually harassing company employees, G&T ignored his complaint. G&T eventually fired both Fernando and Liliana.

Fernando and Liliana sued G&T and Marino for firing them in retaliation for Fernando's complaint of sexual harassment. However, they filed their lawsuit more than two years after G&T fired them. As a result, the trial court dismissed their case because it was filed after the New Jersey Law Against Discrimination's two year statute of limitations had expired.

However, on appeal the New Jersey Appellate Division reinstated Fernando's case. It found he alleged that G&T and Marino continued their pattern of retaliation after they fired him, and that Fernando filed his lawsuit within two years after that pattern of retaliation ended. Specifically, Fernando alleged that G&T removed him from the company's medical insurance a few weeks before the company fired him, and did not reimburse him for his medical expenses for about three months.

The New Jersey Supreme Court agreed with the Appellate Division that Fernando has a valid and timely retaliation claim, even though the retaliation occurred after G&T fired him. It ruled that retaliation does not have to relate to present or future employment to be actionable under the New Jersey Law Against Discrimination.

The Supreme Court also recognized that the statute of limitations did not begin to run until Fernando knew or should have known that G&T cancelled his health insurance. It found that G&T kept him in the dark about cancelling his medical insurance until he attempted to use his benefits and was denied coverage. The Court ruled that, under the Law Against Discrimination, the statute of limitations does not begin to run until an employee either actually knows or is on notice that the company retaliated against him.

The Supreme Court also agreed that if Fernando can prove it was retaliatory, then G&T's decision to cancel his medical insurance violates the New Jersey Law Against Discrimination. The Court ruled that retaliation is actionable if it is "materially adverse." It explained that something is "materially adverse" if it is significant enough that it might convince an employee not to pursue a claim of discrimination in the future. In contrast, minor annoyances are not legally actionable even if they are retaliatory.

However, the New Jersey Supreme Court disagreed with the Appellate Division, ruling that Fernando filed his wrongful termination claim too late. Specifically, the Court found Fernando's claim that G&T fired him in retaliation for his objection to sexual harassment was separate from his claim that G&T retaliated against him by removing him from its medical insurance plan too soon. Since Fernando filed his lawsuit more than two years after G&T fired him, his termination claim was outside of the statute of limitations.

Finally, the Supreme Court ruled that even though Fernando and Liliana were too late to sue G&T for firing them illegally, Fernando might be able to offer evidence that G&T fired them illegally to help prove G&T was retaliating against him when it took him off its insurance benefits. Specifically, the trial judge will have to decide whether Fernando can use evidence that G&T fired him and Liliana in retaliation for their complaints of sexual harassment to he

On January 6, 2010, the New Jersey Appellate Division ruled that J.T. Tire Service can proceed with its sexual harassment lawsuit against United Rentals North under the New Jersey Law Against Discrimination. In the case, J.T. Tire alleges that United Rentals terminated its contract with United Rentals because the owner of J.T. Tire, Eileen Totorello, rejected the sexual advances of one of United Rentals' branch managers, Harold Hinkes.

Specifically, Ms. Totorello alleges that Mr. Hinkes attempted to extort sexual favors from her. She claims that when she initially refused his sexual advances, Mr. Hinkes' branch temporarily stopped buying tires from J.T. Tire. He only resumed doing business with J.T. Tires after Ms. Totorello agreed to have lunch with him.

Ms. Totorello futher claims that, several years later, Mr. Hinkes kissed her and groped her against her will. When she refused his advances, Mr. Hinkes told her she was making a "very poor business decision." One month later, United completely stopped doing business with J.T. Tire.

J.T. Tire and Ms. Totorello then sued United Rentals and Mr. Hinkes for sexual harassment and retaliation in violation of the New Jersey Law Against Discrimination. On a motion to dismiss, United Rentals argued that the case should be thrown out because Ms. Totorello was not an employee of United Rental. The trial judge apparently agreed, since he dismissed all of the claims.

However, the Appellate Division reversed that decision and sent the case back to the trial court. It did so based on a provision of the Law Against Discrimination which makes it unlawful to refuse to buy from, contract with, or otherwise do business with any person on the basis of their sex. The appellate court explained that if Ms. Totorello's allegations are true, United violated that section of the Law Against Discrimination since sexual harassment is discrimination because of sex. That provision is separate from the portion of the Law Against Discrimination that prohibits employment discrimination.

The Appellate Division further indicated that Ms. Totorello is claiming "quid pro quo" sexual harassment. Quid pro quo sexual harassment occurs when an individual or a company makes sexual favors or a sexual relationship a condition of employment or a contract.

The appellate court explained that if companies engage in the type of conduct alleged by Ms. Totorello, it would "stand as a barrier to women's ability to do business on an equal footing with men." The court also indicated that its interpretation of the law would help further an important social policy protected by the New Jersey Law Against Discrimination, which is to "eradicate the cancer of discrimination."

Earlier this year, New Jersey amended its Law Against Discrimination to expressly include "autism spectrum disorders" in its definition of disability. This means it is unlawful for New Jersey employers to discriminate against employees because they are autistic, unless the company can show that the autistic employee cannot perform the essential functions of his or her job, even with a reasonable accommodation. It also means that employers must provide reasonable accommodations for employees who are autistic.

The Law Against Discrimination prohibits employers from discriminating against employees because they belong to legally protected categories. In addition to disabilities, other legally protected categories include age, race, national origin, gender, pregnancy, sexual orientation, and religion.

This amendment to the New Jersey Law Against Discrimination was based on an October 8, 2009 report from the Adults with Autism Task Force. The full text of the new law is available here.

New Jersey's Appellate Division recently upheld a jury verdict which found Avaya, Inc. liable for retaliation in violation of the New Jersey Law Against Discrimination. The case is LaFranco v. Avaya, Inc. It involves an employee, Mark LaFranco, who responded to his supervisor's anti-Semitic statement by emphatically indicating that he is Jewish. In an unpublished opinion, the appellate court found the tone and context of Mr. LaFranco's response indicated he was offended by the statement. In addition, Mr. LaFranco reasonably believed the comment was religious discrimination. Accordingly, his response was a legally protected objection to unlawful discrimination.

Mr. LaFranco worked as a salesperson for Avaya, a telecommunications company, for more than 12 years. He frequently exceeded his sales quotas and received large commissions. Prior to 2002, all of his performance reviews were positive.

In August 2001, Mr. LaFranco reported to his boss, Patrick Iraca, that he had been improperly denied $10,000 in commissions. Mr. LaFranco subsequently reminded Mr. Iraca of the issue, and suggested that Mr. Iraca should discuss it with his boss. In response, Mr. Iraca asked, in a disgusted voice, "What are you, a Jew?"

Mr. LaFranco, who is half Jewish, was shocked and insulted by the question. He turned and looked at Mr. Iraca before he responded, "Yeah, I am." He then stared at Mr. Iraca for several seconds before Mr. Iraca turned and stormed out of the room. Mr. Iraca did not speak to Mr. LaFranco for the rest of the evening.

From that point on, Mr. Iraca's attitude toward Mr. LaFranco was hostile and malicious. Among other things, he undermined Mr. LaFranco's sales efforts, subjected him to unnecessary criticism and scrutiny, failed to give him credit for many of his sales, disproportionately increased his sales quota, decreased his sales territory, excluded him when he redistributed a former salesperson's territory, and berated him in front of his peers. Mr. Iraca also included unwarranted criticism in Mr. LaFranco 2002 performance review, such as falsely accusing him of insubordination. He then placed Mr. LaFranco on a performance development plan, because it was a necessary step before he could fire him. Shortly thereafter, Avaya fired Mr. LaFranco.

The New Jersey Law Against Discrimination prohibits employers from retaliating against an employee because he opposes a practice he reasonably believes violates the Law Against Discrimination. For example, it is unlawful to retaliate against an employee who makes a good faith objection to discrimination or harassment due to age, race, gender, or religion.

In LaFanco, the jury found that Mr. LaFranco proved Avaya retaliated against him because he had opposed an act he reasonably believed was discriminatory. The Appellate Court upheld the jury's verdict. It found Mr. LaFranco reasonably believed Mr. Iraca's question, "What are you, a Jew?," was an act of religious discrimination. It also concluded that under the circumstances, including Mr. LaFranco's tone and demeanor, his response "Yeah, I am" clearly opposed Mr. Iraca's discriminatory practice.

The Appellate Division affirmed Mr. LaFranco's jury verdict of $158,310 in lost wages, $1,000 in emotional distress damages, more than $10,000 in prejudgment interest, and over $365,000 in attorney's fees. The jury also awarded Mr. LaFranco $45,000 for failing to pay him commissions in breach of his employment contract.

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 (NYC HRL) 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 NYC HRL.

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 NYC HRL 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 NYC HRL 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 NYC HRL. 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 NYC HRL "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 NYC HRL.

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.'"

Earlier this year, New York State Gov. David Paterson signed a law that amends the New York Human Rights Law to prohibit employers from discriminating on the basis of an individual's status as a victim of domestic violence. As a result, it is now unlawful for employers in New York State to fire, refuse to hire, harass, or otherwise discriminate against employees with respect to the terms, conditions, or privileges of employment, because they have been the victim of an act of domestic violence, including stalking.

The sponsor of the statute in the New York State Assembly, Westchester County Assemblywoman Amy Paulin, noted that "financial security is one of the most import factors in whether a victim of domestic violence will be able to separate from an abusive partner." Paulson also indicated that this new law "will help victims [of domestic violence] maintain their jobs without fear of unfair termination."

In addition to now prohibiting employers from discriminating on the basis of status as a victim of domestic violence, the New York Human Rights Law also prohibits discrimination based on an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status.