New Jersey Employment Lawyer Blog

New Jersey's Appellate Division recently analyzed whether three individuals were employees or independent contractors for purposes of the New Jersey Law Against Discrimination (LAD). The Court ruled that since there is a factual dispute whether they were employees or independent contracts, the question has to be answered by a jury. The issue is important since the court also concluded the LAD only protects employees, but not independent contractors, from hostile work environment sexual harassment cases. As discussed in a previous article, Sexual Harassment of Independent Contractor Can Violate New Jersey Law Against Discrimination when it results in the contractor losing her job because the LAD prohibits companies from refusing to contract with someone based on their sex.

The case involved three women, Janet Rowan, Kathleen Lownes, and Nancy Heidler, who worked for a group of companies owned by the same two individuals, Joseph Samost and Iva Samost. They alleged Joseph Samost created a sexually hostile work environment for them in violation of the LAD. The trial judge concluded the three women were independent contractors rather than employees, and as a result dismissed their claims.

However, last month in Rowan v. Hartford Plaza LTD., LP, New Jersey's Appellate Division reversed that decision. It explained there are twelve factors to consider when deciding if someone is an employee or an independent contractor under the LAD. It found three of those factors, the employer's right to control the worker's performance, whether the work is supervised or unsupervised, and the level of skill required for the work, supported finding the women were employees since Joseph Samost supervised their work, and their jobs primarily involved unskilled clerical and office work such as filing faxing, copying, and making telephone calls. Similarly, it found another factor, whether the work is an integral part of the business of the company, was supported by the fact that the type of work they performed is necessary to any business. It also noted the fact that they were allowed to work from home did not suggest they were independent contractors since it is common for employees to work from home.

The appellate court found two additional factors, the length of time the individual has worked for the company and the way the work relationship ended, could support finding the women were employees since two of them were told they were fired due to a "restructuring" of the office rather than because of the completion of a particular job assignment. Similarly, it found two other factors, the method of payment and whether the company paid social security taxes were neutral, since the company paid the women "off the books" without issuing a W2 (which would have suggested they are employees) or a 1099 (which would have suggested they were independent contractors). Finally, the Court was unable to determine which position was supported by the last factor, the intent of the parties, since each side gave self-serving testimony in that regard.

As a result, the Appellate Division concluded that a jury has to decide whether the women were employees who are protected from hostile work environment sexual harassment, or independent contractors who are not.

Continue reading "Jury Must Decide Whether Workers Are Employees or Independent Contractors Under New Jersey Law Against Discrimination" »

A question that often comes up in sexual harassment cases is whether you can rely on harassment you learned about secondhand to help prove your case. For example, can you use the fact that one of your coworkers told you that someone else made sexually offensive comments about you to help prove you worked in a sexually hostile work environment?

To prove a sexual harassment case, you need to show you experienced conduct because of your gender that was severe (bad) or pervasive (frequent) enough to make a reasonable woman believe the conditions of her employment were altered and her working environment was hostile or abusive. In determining whether your workplace was sufficiently hostile or abusive, a judge or jury is supposed to consider all of the circumstances, including how frequently the discriminatory conduct occurred, how severe it was, whether it was physically threatening or humiliating, and whether it unreasonably interfered with your job performance.

There are many cases that recognize an employee can rely on secondhand information in a sexual harassment case for certain purposes. For instance, you can rely on evidence that other women were harassed to help show the treatment you experienced was because of your gender, rather than motivated by something else. That is true even if you did not learn about the harassment the other women experienced until after you left your job.

But can you consider evidence of discriminatory conduct you learned about secondhand to prove your workplace was hostile? Most federal courts that have considered the issue have ruled that as long you were aware of the harassment when you were working for the company, you can use evidence of harassment you learned about from someone else to prove that your work environment was hostile. This includes the United States Courts of Appeals for the Second, Fourth, Sixth, and Seventh Circuits, as well as numerous District Court decisions including the District of New Jersey. As a result, for those of you in New York State, at least assuming your case is in federal court, evidence of harassment you learned about secondhand should be available to help prove your workplace was hostile.

However, there is language in a 2008 New Jersey Supreme Court opinion, Godfrey v. Princeton Theological Seminary, which says that when proving her work environment was hostile, a woman must rely on "evidence of bad conduct of which she has firsthand knowledge." If interpreted literally, that could mean a plaintiff cannot rely on evidence of harassment she learned about secondhand, even if it actually contributed to make her work environment hostile. But in Godfrey, since the harassment occurred before the employees who brought the lawsuit started working for the employer, it was neither directed at nor witnessed by them. As a result, it is not surprising the court found the women could not rely on this evidence to prove their work environment was hostile.

Given New Jersey's strong public policy in favor of prohibiting sexual harassment from the workplace, I doubt the New Jersey Supreme Court intended to rule that an employee can never rely on harassment she learned about second hand. Rather, evidence of harassment that you learned about secondhand should be relevant as long as it actually contributed to making your work environment hostile. Of course, that will not prevent employers from arguing that this type of evidence is inadmissible under Godfrey.

For more information about the Godfrey case, please read our previous article: New Jersey Supreme Court Clarifies Sexual Harassment Standard: Repeatedly Asking for Dates is Not Sexual Harassment.

Continue reading "He Said What? Proving Sexual Harassment Based on Information Learned Secondhand" »

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

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

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

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

Continue reading "It Happened to Me Too - When Can You Prove Harassment With Evidence of Harassment to Someone Else?" »

When an employee brings a harassment claim under federal law, one element of her claim is that she was harmed by the harassment. The Third Circuit Court of Appeals recently recognized that an employee can meet that requirement even though she personally sent emails containing sexual jokes at work.

The employee in question, Shannon Mandel, worked for M&Q Packing Corp. as an Inside Sales and Customer Relations Coordinator. She alleges she experienced sexual harassment including:

• Calling her "woman," "darling," "fluffy," "missy," "hon," "toots," "too female;" and "too emotional;"
• Commenting about her body, clothing, and physical appearance;
• Paying her less than her male peer;
• A male manager telling her a meeting would take place at his house, and they would conclude their part of the meeting in the morning;
• Another male supervisor indicting he fantasizes about her while having sex with his wife; and
• A third male manager asking her on dates even after she told him she was not interested

Previously, the District Court had dismissed Ms. Mandel's sexual harassment claim, finding there was not enough evidence for a jury to conclude she was harmed by the harassment. It relied heavily on the fact that Ms. Mandel frequently used vulgarity and sent emails containing sexual jokes at work. The District Court found this behavior demonstrated Ms. Mandel's "casual ease with this type of workplace behavior." While the court recognized that did not necessarily mean Ms. Mandel had not been harmed by the harassment she experienced, it also concluded she had no evidence she had experienced emotional distress as a result of the harassment, or that the harassment made it more difficult for her to perform her job. It also indicated the only time Ms. Mandel complained about the harassment was after she was called a "bitch," and she made that complaint to a coworker rather than to a supervisor or the Human Resources Department.

In Mandel v. M&Q Packaging Corp., the Third Circuit strongly disagreed. It indicated it was "disturbed" by the District Court's conclusion that no reasonable jury could find Ms. Mandel was harmed by the harassment. It explained that even though Ms. Mandel engaged in unprofessional conduct by using vulgarity and sending sexual jokes, the harassment she experienced was "often worse and apparently uninvited." Further, it disputed the District Court's conclusion that Ms. Mandel only complained about one incident of harassment. In addition, it recognized that Ms. Mandel had stated under oath that the harassment caused her harm. Accordingly, it found a reasonable jury could conclude that Ms. Mandel was harmed by the sexual harassment, and reversed the District Court's decision to dismiss her sexual harassment claim.

Continue reading "Employee Who Sent Sexual Emails at Work Still Can Pursue a Sexual Harassment Claim" »

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" »

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 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."

On May 22, 2009, in the case of Sassaman v. Gamache, Commissioner, Dutchess County Board of Elections, the United States Court of Appeals for the Second Circuit reinstated the sex discrimination claim of an employee who was forced to resign because another employee accused him of sexual harassment. The Second Circuit is the federal appellate court that covers several states, including New York.

The plaintiff in that case, Carl Thomas Sassaman, worked for the Dutchess County Board of Elections. In March 2005, another Board of Elections employee, Michelle Brant, accused Mr. Sassaman of harassing and stalking her. Mr. Sassaman denied harassing Ms. Brant. He also claimed that she had previously asked him if he was interested in a one-time sexual encounter with her, which he declined.

When Ms. Brant complained about the sexual harassment, the Commissioner of the Board of Election, David Gamache, suggested that Ms. Brant file a complaint with the Dutchess County Prosecutor's office. The Prosecutor's office subsequently found insufficient proof that Mr. Sassaman had enaged in a crime.

However, Mr. Gamache and the Board of Elections conducted virually no sexual harassment investigation of their own. Instead, they immediately suspended Mr. Sassaman without pay. A few weeks later, Mr. Gamache gave Mr. Sassaman the option to resign, or he would be fired. According to Mr. Sassaman, Mr. Gamache told him "I really don't have any choice, Michelle [Brant] knows a lot of attorneys; I'm afraid she'll sue me. And besides you probably did what she said you did because you're male and nobody would believe you anyway." Given the options, Mr. Sassaman resigned.

Mr. Sassaman then filed a discrimination lawsuit, alleging that Mr. Gamache, the Dutchess County Board of Elections, and Dutchess County discriminated against him because of his gender in violation of Title VII of the Civil Rights Acts of 1964. The United States District Court for the Southern District of New York dismissed Mr. Sassaman's case, concluding he did not have sufficient evidence of sex discrimination to even get to a jury. However, on appeal, the Second Circuit reinstated his case.

The Second Circuit reasoned that a jury could interpret Mr. Gamache's statement that Mr. Sassaman "probably did what [Ms. Brant] said you did because you're male," as evidence of gender discrimination. Specifically, a jury could reasonably interpret his statement to mean that Mr. Gamache assumed Mr. Sassaman sexually harassed Ms. Brant based on a discriminatory assumption that men are likely to engage in sexual harassment. Adverse employment decisions based on stereotypes about the behavior of men or women are discriminatory, and violate Title VII.

The Court noted that, in context, the fact that Mr. Gamache terminated Mr. Sassaman's employment without adequately investigating Ms. Brant's sexual harassment allegations further support his gender discrimination claim. While Mr. Gamache claims he terminated Mr. Sassaman's employment because he was afraid Ms. Brant would sue for sexual harassment, a jury might not believe that argument.

However, the Second Circuit was careful to note that an insufficient sexual harassment investigation, on its own, is not enough to prove sex discrimination. Rather, when there is other evidence of discrimination, the lack of a proper investigation potentially can support a discrimination claim. In other words, the Court did not rule that an alleged harasser can sue for discrimination merely because the employer fired him or her without engaging in an adequate investigation. It merely recognized that, in some cases, the employer's failure to conduct a thorough sexual harassment investigation can further support a discrimination claim.

On July 7, 2008, in the case of Roa v. LAFE, the New Jersey Appellate Division ruled that retaliation that occurs after an employee was fired can violate the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. The New Jersey Law Against Discrimination prohibits discrimination in employment, housing and places of public accommodation. It also includes an anti-retaliation provision that makes it unlawful for:

any person to take reprisals against any person because that person has opposed any practices or acts forbidden under [the New Jersey Law Against Discrimination]... or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the New Jersey Law Against Discrimination].

N.J.S.A. § 10:5-12(d).

Roa involved Fernando and Liliana Roa, a husband and wife who worked for LAFE, a New Jersey corporation. Liliani claimed that LAFE's Vice President, Marino Roa, engaged in two extramarital affairs with employees of LAFE. Fernando eventually told Marino's wife about the affairs. According to Fernando and Liliani, Marino then began a campaign of harassment against them. When Fernando told the president of LAFE that Marino was sexually harassing company employees, LAFE ignored his complaint. LAFE eventually fired both Fernando and Liliani.

Fernando and Liliana sued LAFE and Marino for firing them in retaliation for Fernando's complaint of sexual harassment, in violation of the New Jersey Law Against Discrimination. However, they filed their lawsuit more than two years after LAFE fired them. As a result, the trial court dismissed their case because it was filed after the LAD's two year statute of limitations had expired.

However, on appeal the New Jersey Appellate Division reinstated Fernando's case, and sent it back to the trial court for reconsideration. It did so because Fernando alleged that LAFE and Marino continued their pattern of retaliatory conduct toward him after LAFE fired him, and that Fernando filed the lawsuit within two years after that pattern of retaliation stopped.

Specifically, Fernando claimed that LAFE removed him from the company's medical insurance several weeks before the company fired him, and did not reimburse him for his medical expenses until three months after LAFE fired him. Fernando claimed LAFE wrongfully terminating his insurance was another act of retaliation against him. The Appellate Division found that he filed his lawsuit within the statute of limitations because he filed it less than two years after he learned that LAFE had denied his insurance claim, and less than two years after LAFE finally reimbursed him for his medical expenses.

In concluding that this post-termination retaliation was legally actionable under the New Jersey Law Against Discrimination, the court relied on Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), a United States Supreme Court opinion interpreting Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employment discrimination because of race, sex, national origin, color, and religion. Burlington recognizes that "the anti-retaliation provision [of Title VII] . . . is not limited to discriminatory actions that affect the terms and conditions of employment." Rather, like the New Jersey Law Against Discrimination, "[t]he scope of the anti-retaliation provision [of Title VII] extends beyond workplace-related or employment-related retaliatory acts and harm."

Roa is the first published New Jersey case to conclude that post-employment retaliation can violate the New Jersey Law Against Discrimination. That is significant because it suggests that other post-termination retaliatory actions would violate the New Jersey Law Against Discrimination. For example, an unwarranted opposition of an employee's application for unemployment insurance benefits, an undeserved negative job reference, or a lawsuit or counterclaim against a former employee, could potentially violate the New Jersey Law Against Discrimination if they are motivated by retaliatory animus. Only time will tell how expansively or restrictively future courts will interpret Roa, and what types of post-termination retaliatory actions will be found to violate New Jersey law.

The employment law attorneys of the Nirenberg Law Firm, LLC, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

On August 4, 2008, the New Jersey Supreme Court ruled that repeatedly asking a woman out on a date, even when she repeatedly declines the invitations, does not constitute unlawful sexual harassment. More specifically, New Jersey's highest Court ruled that the harassment alleged was not severe or frequent enough to be legally actionable.

The case, Godfrey v. Princeton Theological Seminary, involved Beth Godfrey and Jennifer Kile, two graduate students in their mid twenties, who were repeatedly asked out on dates by William Miller, a tenant of the Seminary who was in his upper sixties. Godrey and Kile sued the Princeton Theological Seminary for permitting a sexually hostile environment.

Since Godfrey and Kile were not employees of the Seminary, they sued under a section of the New Jersey Law Against Discrimination that states that "[a]ll persons shall have the opportunity . . . to obtain all the accommodations, advantages . . . and privileges of any place of public accommodation. . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex , gender identity or expression." Among other things, that section prohibits sexual harassment in many public places. Godfrey and Kile also sued under Title IX of the Education Amendments of 1972, and for breach of contract.

Godfrey's Allegations

Godfrey first met Miller at the Campus Cafeteria in the fall of 2000. In December 2000, he asked her to go to a concert with her. When she turned him down, Miller asked her out again, and Godfrey again said no. When Godfrey saw Miller on campus later that evening, she actively avoided him.

In January 2001, Godfrey received a package from Miller that enclosed a card which detailed Miler's personal life and a package of Winnie the Pooh note cards, both of which Godfrey discarded. However, she sent him a brief thank you note for the gift.

That summer, Miller saw Godfrey and invited her out to lunch. When Godfrey declined the invitation, Miller asked if he could take her out some other day. Godfrey again declined, and told Miller that she would only have lunch with him if they were at a crowded table in the Seminary's cafeteria.

The following weekend, Miller left Godfrey a series of telephone messages, the first asking her out to lunch, the next two inviting her to go to church and lunch, and another inviting her to a picnic and a concert. When Godfrey did not return any of his messages, Miller left her another message stating that we was angry that she had not returned his calls, but inviting her to a picnic with him. Godfrey did not respond to any of Miller's telephone messages.

Godfrey then met with the Seminary's Student Relations Director, Kathy Cook Davis, and told her about Miller's behavior. Cook Davis was sympathetic, and told Godfrey that Miller had also pursued her when she was a student at the Seminary. Cook Davis told Godfrey that the Seminary's Dean of Students, Jeffrey O'Grady, had handled previous complaints about Miller, and would handle her situation when he returned from his vacation.

Kile's Allegations

Kile first met Miller in the fall of 1999 when he approached her at the Seminary's library, where Kile worked. Miller asked Kile for the telephone number of two female students who he wanted to take out for dinner. Kile refused to provide that information to Miller.

On two occasions shortly thereafter, Miller came to the library and showed Kile articles about various ministries. Kile briefly and politely talked to Miller each time.

In January 2000, Kile received a package in the mail from Miller, which contained a greeting card with Miller's picture on it, a newsletter that provided information about Miller's company, and various other items. Kile informally mentioned this to O'Grady.

Starting in September 2000, Kile studied abroad in Sheffield, England. In the spring of that year, Kile was at the Seminary for a week. During that week, Miller approached Kile in the cafeteria, and asked her for her address in England so they could get together. Kile was "freaked out" that Miller knew she was studying in England, and refused to provide her address to him. Miller then asked Kile for her email address, which Kile provided so she could politely get out of the conversation. She then told Miller that she had to attend chapel service and left the cafeteria.

Later that day, Miller approached Kile as she was leaving chapel service, and told her he had attended the service because she told him she would be there. Kile considered it disturbing that Miller had followed her, and quickly walked away.

A few weeks later, Kile received an e-mail from Miller indicating that he was coming to England. In the email, Miller invited Kile to meet him in London to attend a lecture and go out to dinner. Kile ignored Miller's email.

In May 2001, Kile learned that Godfrey was planning to speak to O'Grady about Miller's behavior. Shortly thereafter, Kile emailed O'Grady, and provided him details about Miller's behavior toward her.

The Seminary's Response to Grady and Kile's Complaints

After Godfrey and Kile complained to O'Grady, the Seminary sent a letter to Miller telling him that he was prohibited from entering the Campus Center for any reason other than to attend public events. In the Fall of 2002, Godfrey and Kile informed the Seminary that Miller had violated that prohibition at least twice. They subsequently met with the Seminary's psychology counselor who specializes in sexual harassment issues, and received copies of the Seminary's sexual harassment policy. They then filed formal internal complaints of sexual harassment. However, the Seminary subsequently informed Godfrey and Kile that its sexual harassment policy does not apply to Miller since he was a public tenant, not a member of the Seminary community.

The New Jersey Supreme Court's Legal Analysis

After discussing Godfrey and Kile's allegations in detail, the New Jersey Supreme Court noted that the standards for considering cases relating to harassment in a place of public accommodation are the same as the standards used to prove harassment in the employment law context. Specifically, to prove sexual harassment in an employment law case, an employee must show that the conduct was severe or pervasive enough to make a reasonable woman believe that her work environment is hostile or abusive. To evaluate whether that standard has been met, a Court must consider (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct was threatening or humiliating, or merely offensive; and (4) whether the conduct unreasonably interfered with the employee's job performance. In addition, the conduct must be considered cumulatively, instead of looking at each incident individually, since it is typically the impact of many relatively small acts that create a hostile work environment. That evaluation must be objective, meaning it must be viewed from the prospective of a reasonable woman, not from the subjective prospective on the woman who experienced the harassment.

Applying those legal standards to the facts of the case, the New Jersey Supreme Court ruled that Miller's actions toward Godfrey and Kile were not severe or pervasive enough to be legally actionable sexual harassment. Among other things, the Court considered the fact that there were a limited number of encounters that occurred over a period of years, and that neither of the women told Miller they had no interest in him romantically or otherwise, and neither woman told him to leave her alone. The Court refused to consider the fact that the plaintiffs each felt Miller's behavior was strange and distressing, or that they considered him to be stalking them, since those reactions are subjective opinions and the law requires an objective evaluation of the evidence.

Notably, and perhaps most clearly explaining why the New Jersey Supreme Court found Miller's behavior did not constitute unlawful sexual harassment is the following passage it quoted from the Appellate Division's previous decision dismissing the case:

Miller's repeated and unwelcome behavior was one of the socially uncomfortable situations that many women encounter in the course of their lives when someone in whom they are not interested persists in trying to persuade them otherwise. In our view, Miller's persistence did not cross the line and become actionable harassment.

In other words, the New Jersey Supreme Court apparently felt that, although Miller's actions might have been unpleasant and unwelcome, merely being persistent in asking someone out on dates does not constitute sexual harassment.

The lawyers of our employment law and civil rights law firm, The Nirenberg Law Firm, LLC, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

Employee Rights Laws
Part 4: Overview of New York Employment Law Statutes

Part 1 - Overview of Federal Anti-Discrimination Employment Laws
Part 2 - Overview of Other Federal “Wrongful Termination” Employment Laws
Part 3 - Overview of New Jersey Employment Law Statutes

In most states, including New York, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the fourth and final part of a four part series, looks at employee rights under New York State and New York City law. The first part of the series discusses some of the most important federal anti-discrimination laws . The second part describes many other important federal employment laws. Part three addresses many important exceptions to employment at will under New Jersey law.

New York State Employment Law Rights

The following is an overview of some of the most important New York State and New York City employment law rights. This is not intended to be a comprehensive list of all statutory New York employment laws, and that not every one of these law applies to every employee in New York. If you believe your rights have been violated, it is recommended that you contact a knowledgeable, dedicated and experienced New York employment lawyer.

New York State Employment Law Rights:

New York Human Rights Law

• Prohibits employment discrimination on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or certain criminal convictions.


• Makes it illegal for employers to harass employees on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status. This includes prohibiting sexual harassment.


• Prevents employers from forcing pregnant employees to take medical leaves, unless the pregnant employee cannot reasonably perform her job.


• Requires employers to provide reasonable accommodations to allow disabled employees to perform the essential functions of their jobs.


• Protects employees from retaliation for opposing an action prohibited by the New York Human Rights Law, or filing a complaint, testifying or assisting in a case pursuant to the New York Human Rights Law.

New York Wage and Hour Laws

• Established a higher minimum wage than the minimum required by the Fair Labor Standards Act. As of January 1, 2007, most employees working in New York State are entitled to receive at least $7.15 per hour.
• Requires employers in New York State to provide most employees who work at least 6 hours per day to at least thirty minutes for a meal break. Under certain circumstances, employees are legally entitled to a longer meal break.

New York Whistleblower Law - Labor §740

• Prohibits retaliation against employees who disclose, object to, or refuse to participate in actions that violate a law, rule, or regulation that presents a substantial, specific and imminent danger to public health or safety.

New York City Employment Law Statutes:

New York City Human Rights Law

• Makes it illegal for employers to discriminate against employees on the basis of race, age, gender, disability, gender identity, sexual orientation, marital status, partnership status, national origin, color, creed, alienage or citizenship status, arrest or conviction record, or status as a victim of domestic violence, stalking or sex offense.


• Prohibits employers from harassing employees because of their race, age, gender, disability, gender identity, sexual orientation, marital status, partnership status, national origin, color, creed, alienage or citizenship status, arrest or conviction record, or status as a victim of domestic violence, stalking or sex offense. This includes prohibiting sexual harassment.


• Protects individuals who oppose discrimination or harassment prohibited by the New York City Human Rights Law, or who assist an investigation pursuant to the New York City Human Rights Law, by prohibiting retaliation.

The attorneys of our employment and civil rights law firm, The Nirenberg Law Firm, LLC, are experienced at representing employees in New York State and New York City whose employment law rights have been violated.

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