Discrimination

New Jersey Court Finds Emphatic Response to Discriminatory Remark Can Be Legally Protected

January 23, 2010 | by Jonathan I. Nirenberg

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 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 In an unpublished opinion, the appellate court found the tone and context of Mr.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?”

When Do Employers Violate the ADA By Discriminating Against Employees With Disabled Relatives?

November 1, 2009 | by Jonathan I. Nirenberg

In two previous articles, I discussed important rulings the Third Circuit Court of Appeals made in Erdman v. Nationwide Insurance Company regarding the Family & Medical Leave Act (FMLA). Specifically, that case rules that an employee’s time worked from home counts toward the FMLA’s 1,250 hour eligibility requirement if the employer knew or should have known the employee was working off-site, and that an employee who requests an FMLA leave is legally protected even if he never actually takes a leave. But Erdman also makes an important ruling regarding another, the Americans with Disabilities Act (ADA).

The ADA is a federal law that prohibits employers from discriminating against employees on the basis of a disability. It includes a provision prohibiting employers from discriminating against individuals because they have a relationship or association with someone who has a disability. For example, it prohibits employers from discriminating against an employee who has a disabled child.

As Erdman notes, although the ADA requires employers to make reasonable accommodations to allow employees to perform the essential functions of their jobs, it does not require employers to accommodate employees who have a disabled relative. As a result, employers can refuse to provide an employee time off to care for a disabled relative without violating the ADA. Of course, doing so could violate the FMLA or a state law such as the New Jersey Family Leave Act.

New York Human Rights Law Amended to Prohibit Discrimination Against Victims of Domestic Violence

September 5, 2009 | by Jonathan I. Nirenberg

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.

Inadequate Sexual Harassment Investigation Can Help Support Discrimination Claim By Alleged Harasser

August 3, 2009 | by Jonathan I. Nirenberg

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 gender 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.

After-Acquired Evidence Inadmissible Until After Jury Finds Wrongful Termination

June 18, 2009 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division ruled that it is improper to present a jury with evidence regarding “after-acquired evidence” until after it has determined that an employer violated New Jersey’s Conscientious Employee Protection Act (CEPA). CEPA is New Jersey’s whistleblower law.

After-acquired evidence is when a company learns during a discrimination or retaliation lawsuit that the employee did something while he worked for the company that would have been grounds for firing him. If the employer can prove it would have fired the employee based on the new evidence, the employee’s damages for lost salary and benefits are cut off from the date on which the employer learned the new information.

Even when it applies, the after-acquired evidence defense does not prevent an employee from proving a wrongful termination claim, does not impact damages for salary and benefits the employee lost before the employer discovered the wrongdoing, and does not limit damages for emotional distress damages in any way. It only cuts off damages for lost salary and benefits starting from the date on which the employer discovered the new information.

Employees Working in Other States Can Sue Under New York’s Anti-Discrimination Laws

May 29, 2009 | by Jonathan I. Nirenberg

If you have been the victim of unlawful discrimination or harassment, you might be able to sue your employer for under New York law even if you never worked in New York. At least according to one New York appellate court, employees can bring discrimination claims under New York’s anti-discrimination law if they are residents of New York or if the company made its discriminatory decision in New York, even if their jobs were out of state. For example, a New York State resident who works in New Jersey or Connecticut can sue his or her employer for discrimination under New York law.

Among other things, the New York Human Rights Law (NYHRL) prohibits employment discrimination and harassment based on an individual’s age, race, creed, color, national origin, sexual orientation, military status, gender, genetic characteristics, or marital status. The New York City Human Rights Law (NYCHRL) prohibits discrimination and harassment based on virtually all of those categories, as well as discrimination based on gender identity, partnership status, alienage/citizenship status, and status as a victim of domestic violence, stalking or sex offense. Both laws prohibit companies from retaliating against employees who complain about legally prohibited discrimination or harassment.

The NYHRL specifically states that it applies to acts committed outside of New York State if the employee is a resident of New York. Thus, New York residents can sue companies for violating the NYHRL even if they worked in another state.

Discrimination Against Caregivers

May 22, 2009 | by Jonathan I. Nirenberg

Earlier this month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.

Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.

The EEOC’s 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.

President Obama Signs Lilly Ledbetter Fair Pay Act

January 29, 2009 | by Jonathan I. Nirenberg

Earlier today, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The Act reverses the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case, the Supreme Court ruled that Lilly Ledbetter was outside of Title VII’s filing deadline when she initiated her gender discrimination claim against Goodyear. Ms. Ledbetter was seeking damages because she was paid less than men in comparable positions at the company. The Supreme Court found that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company’s initial discriminatory decision, even though she was still underpaid due to the past discrimination in that her salary remained lower than her male coworkers.

The Ledbetter decision was highly criticized on the basis that employees usually do not know how much their coworkers are paid, making it difficult or impossible for them to determine that they are experiencing discriminating against with respect to their compensation. As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

Damages in Employment Law Cases

January 17, 2009 | by Jonathan I. Nirenberg

Many people who have been fired, demoted, harassed, or experienced some other violation of their employment law rights wonder what kind of damages they can recover if they win their case. Damages in employment law case can vary greatly in different states and under different laws, so it is recommended that you contact an employment lawyer in your area to discuss your specific claims. However, the most common type of damages available in employment law cases in New York and New Jersey include economic damages, emotional distress damages, attorneys fees and costs, punitive damages, and liquidated damages.

Economic Damages

Most employment laws allow for the recovery of economic damages. Economic damages are intended to compensate you for the salary and benefits you lost. They can include your lost salary and the value of your lost benefits like health insurance, a pension, or a 401(k) plan. Economic damages include past losses (called back pay) and future losses (called front pay).

New Jersey Employees Can Prove Discrimination Even If Decisionmaker Had No Discriminatory Animus

November 24, 2008 | by Jonathan I. Nirenberg

The New Jersey Appellate Division recently ruled that it is possible for an employee to prove he was fired for a discriminatory reason even if the person who made the ultimate decision to fire him did not have any discriminatory animus. Specifically, that can happen if the employee’s supervisor did something to bias the decisionmaker, or if the decisionmaker’s involvement in the process was a mere formality.

The case, Kwiatkowski v. Merrill Lynch, involved Merrill Lynch’s decision to fire one of its employees, Darren Kwiatkowski. Mr. Kwiatkowski is gay. Merrill lynch fired him after he deliberately disobeyed an instruction from his supervisor, Theresa Wonder.

Immediately after Mr. Kwiatkowski’s insubordination, Ms. Wonder reported him to her supervisor, Sandra Givas, and recommended that the company should fire him. There was evidence that Ms. Wonder knew Mr. Kwiatkowski was gay and was biased against him on that basis. However, there was no evidence that Ms. Givas even knew that he was gay.