New Jersey Employment Lawyer Blog

Beware: Your Boss Might Read Your Posts on Social Networking Sites

November 17, 2011 | by Jonathan I. Nirenberg

I often read status updates on sites like Facebook, LinkedIn and Twitter reflecting my friends’ feeling about their work, bosses, and co-workers. It is worth a reminder that such postings potentially can be used against you in an employment law case, such as a discrimination, harassment, or retaliation lawsuit. If your profile is public, or if one of your supervisors is your “friend,” your employer will have easy access to that information. But your employer might be able to obtain the information in a lawsuit even if it was originally visible only to individuals who you have accepted as “contacts” or “friends.”

For example, one of my clients recently received the following request from a large law firm that represents employers:

Produce a copy of the contents of Plaintiff’s account on any social media websites, such as Facebook, MySpace, Twitter, LinkedIn, etc.

I intend to object to this request because it is nothing more than a fishing expedition, and the employer is seeking information that is not relevant to the case. But there are many ways in which your posts may be relevant to an employment law matter. For example, if you are having a good day at work and post “I love my job,” that could be used against you to prove you did not experience a hostile work environment, and therefore harm your harassment claim. On the other hand, if you express negative feelings about your boss, co-workers, clients, or customers, then you could be accused of disparaging your employer, which could violate an internal company policy, your employment contract, or your duty of loyalty to your employer.

It is important to realize that, unless you delete it, all of the data you have posted on Facebook, including wall posts, photos with comments, videos, private messages, friend lists and other user profile content, remains accessible in an archive that is fairly easy to retrieve. You can download it from the Account Settings menu. Thus, even very old posts could hurt you if the employment relationship goes bad. Be very careful about what information you post about your job on social networking websites. At the very least, you should not post anything about your current or former employer that you would not want the employer to read.

However, once you are considering filing a lawsuit, you cannot erase your archive because you would be destroying potential evidence in your case, and you could be penalized. For example, in Lester v. Allied Concrete, a plaintiff who prevailed in a wrongful death case was ordered to pay a $180,000 fine for deleting his Facebook profile.

Jury to Decide Whether Caswell-Massey Discriminated Against Disabled Employee With Sleep Apnea

November 7, 2011 | by Jonathan I. Nirenberg

Last month, in Gibbs v. Caswell-Massey, New Jersey’s Appellate Division ruled that Linda Gibbs could proceed with her disability discrimination lawsuit against her former employer, Caswell-Massey. Caswell-Massey is a luxury bath and body products company in Edison, New Jersey. It hired Ms. Gibbs in 1993 . She was gradually promoted through the company’s ranks, and eventually became its Corporate Manager, Retail Stores and International Sales.

In 2000, Ms. Gibbs’s doctor diagnosed her with sleep apnea. This disability causes Ms. Gibbs fatigue, and often makes it difficult for her to stay awake at work. For example, she occasionally nods off at her desk. Caswell-Massey warned Ms. Gibbs on several occasions that her unexcused absences, sleeping, and poor job performance were unacceptable, and that she could be fired if she had any further performance issues. Nonetheless, Ms. Gibbs received an overall performance rating of “above overall expectations” in both 2005 and 2006.

In November 2006, Ms. Gibbs took a four-week disability leave to have hernia surgery. The company fired her two days after she returned to work. It claims its decision to fire was based on information it received from Steven Culter during Ms. Gibbs’s disability leave. Mr. Cutler was business partners with Ms. Gibbs’ husband. He and Mr. Gibbs apparently worked together at the Route 18 flea market in East Brunswick, New Jersey. Mr. Cutler claimed that Ms. Gibbs was stealing products from Caswell-Massey, and her husband was selling them at the flea market. He eventually provided the company with photographs of Caswell-Massey’s products that he was selling at the flea market, a copy of a book with Gibbs’s handwriting that listed prices for Caswell-Massey products, and his own sworn statement claiming Ms. Gibbs admitted she had taken products from Caswell-Massey.

Caswell-Massey investigated Mr. Cutler’s allegations. During the investigation, Ms. Gibbs claimed she did not know her husband was selling Caswell-Massey products at the flea market. She also claimed that Mr. Cutler was blackmailing her, and provided evidence including threatening voicemail messages that Mr. Cutler had left her. Caswell-Massey suspended Ms. Gibbs without pay while it conducted its investigation. At the conclusion of the investigation, it fired Ms. Gibbs, supposedly because she had violated the non-compete provision in her employment contract.

The trial court dismissed Ms. Gibbs’s case, including her claim that Caswell-Massey fired her because of her disability in violation of the New Jersey Law Against Discrimination (LAD). It ruled that she did not have enough evidence to prove that Caswell-Massey’s explanation for firing her was a pretext, or excuse, for discrimination.

The Appellate Division disagreed. It held that a reasonable jury could believe that Caswell-Massey discriminated against Ms. Gibbs, based on evidence supporting the conclusion that the company conducted an inept and cursory investigation, relied on Mr. Cutler’s statements even though he was a biased and questionable source, and ignored Ms. Gibbs’ 13 year history with the company, in addition to the lack of evidence that Ms. Gibbs’ husband ever sold a single Caswell-Massey product. However, the Court also indicated that a jury could come to the opposite conclusion, and could find that the company fired Ms. Gibbs because she violated her non-compete agreement. As a result, the Appellate Division sent the case back to the trial court, so a jury can decide whether Ms. Gibbs has proved that Caswell-Massey illegally discriminated against her.

New Jersey Court Rules Jury Must Decide If Employer is Responsible for Coworker’s Sexual Harassment

October 26, 2011 | by Jonathan I. Nirenberg

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:

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

As a result, the Appellate Division sent the case back for a trial at which a jury will decide those issues.

Employer’s Failure to Follow Job Restructuring Plan Could Prove Discrimination

October 18, 2011 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently ruled that when a company does not follow through with the plan it used to justify firing an employee, such as its plan for a reorganization or reduction in force, that failure can be enough for a jury to conclude that the decision to fire the employee was discriminatory.

In Abraham v. American International Group, Inc., Lisbi Abraham sued American International Group (AIG) claiming the company fired him because of his race and national origin, in violation of the New Jersey Law Against Discrimination (LAD). Mr. Abraham is a United States citizen of Indian descent. His was AIG’s Chief Technology Officer (CTO) for the company’s Domestic Brokerage and Information Services Groups. The LAD prohibits companies from firing employees based on their race or national origin.

In October 2005, AIG issued a report which concluded that it should eliminate 13 of its 20 CTO positions. In May 2006, AIG fired Mr. Abraham. AIG claimed it fired him because it was restructuring the Information Services Group to eliminate duplication and redundancy of job functions.

The Appellate Division explained that one way a plaintiff can prove discrimination is by offering evidence that discredits the employer’s explanation for its actions. It ruled that Mr. Abraham had evidence to discredit AIG’s claim that it fired him as part of a job restructuring. In particular, although several other people temporarily took over Mr. Abraham’s job duties after he was fired, none of his functions were permanently transferred to other employees. Since there is evidence that Mr. Abraham’s job never was merged into another job, as AIG claimed it intended to do when it justified firing Mr. Abraham, the Appellate Division ruled that a jury could conclude that AIG fired him because of his race or national origin.

The Appellate Division was careful to recognize that courts should not act as “super-personnel departments,” or second-guess employment decisions such as job restructuring. However, it also recognized that companies can violate the LAD in many “subtle and nuanced ways,” that there is rarely “smoking gun” evidence to prove discrimination, and that often there are not even any overt acts of discrimination. The court concluded that, after a trial, a jury could find that AIG discriminated against Mr. Abraham because of his race or national origin, or it could find that AIG’s decision to fire him was legitimate. It therefore sent his case back for a trial.

Third Circuit Finds Newark Hiring Practice Might Discriminate Based on Race

October 6, 2011 | by Jonathan I. Nirenberg

Last week, the Third Circuit Court of Appeals ruled that statistical evidence could be enough to prove that Newark’s residency requirement for its non-uniformed employees has a disparate impact based on race. A disparate impact claim is when someone claims that a seemingly neutral policy has a disproportionately negative impact on a particular legally protected group.

Specifically, in Meditz v. City of Newark, Gregory Meditz sued Newark after it refused to hire him as its Housing Development Analyst because he lives in Rutherford, rather than in Newark, New Jersey. He claims the Newark’s residency requirement for its non-uniformed employees is illegal because it has a disparate impact on non-Hispanic whites, since the population of Newark does not reflect the racial mix of the relevant job market. He alleges that fewer non-Hispanic white employees work for Newark as non-uniformed employees because of the residency requirement.

To support his claim, Mr. Meditz used statistics showing there is a much lower percentage of non-Hispanic white employees who work for Newark in non-uniformed positions (1) than there are in the general population of Newark, (2) than work for Newark in uniformed positions than non-uniformed positions, (3) than work for the government and private companies in Bergen, Essex, Hudson, Morris, Passaic, and Union Counties, and (4) than work for the Essex County government in Newark.

Newark, New Jersey.png Despite this evidence, the District Court dismissed Mr. Meditz’s employment discrimination lawsuit, finding his statistical evidence was not enough to prove that Newark’s residency requirement has a disparate impact based on race. The lower court relied on the fact that “Newark is New Jersey’s largest city with over 270,000 residents, 38,950 of whom are White.” It concluded that “[g]iven its diversity and large population, there is no need to redefine the relevant labor market past city limits for purposes of Title VII analysis.” Title VII is a federal employment law that prohibits employers from discriminating based on an employee’s race, color, national origin, or gender.

However, the Court of Appeals disagreed and allowed Mr. Meditz to proceed with his case. It found his statistical evidence might be enough to prove that Newark’s residency requirement has a disparate impact based on race. However, it ruled that the District Court has to determine the relevant labor market before it can determine whether Mr. Meditz’s statistics prove his claim. The Third Circuit concluded that the District Court must consider factors including geographic location, available transportation to Newark, commuting patterns, and where employees working for private companies in Newark live.

If Mr. Meditz can prove that Newark’s residency requirement has a disparate impact based on race, then Newark’s only defense would be that it has a “business necessity” for having a residency policy. That means Newark would have to prove that the hiring criteria “must effectively measure the minimum qualifications for successful performance of the job in question.” Otherwise, its residency requirement would have an illegal disparate impact based on race, in violation of Title VII.

Employee Alleges New Jersey Judiciary Failed to Accommodate His Disability

September 30, 2011 | by Jonathan I. Nirenberg

In two previous articles, I discussed the case of Thomas Bowers, an Information Technology Analyst who successfully appealed his race discrimination claim and his retaliation claim against the New Jersey Judiciary. Mr. Bowers was also successful on his appeal of his claims that the judiciary forced him to resign by refusing to provide him a reasonable accommodation for his disability, in violation of the New Jersey Law Against Discrimination (LAD).

Mr. Bowers claims he experienced mental and physical distress as a result of the race discrimination, harassment, and retaliation he experienced at work. His doctor diagnosed him with Anxiety Disorder, and suggested that he take medical leave from June 6 to July 1, 2007. Mr. Bowers’ doctor subsequently extended his medical several times, and ultimately indicated Mr. Bowers would be ready to return to work on October 1, 2007.

On August 30, 2007, the Judiciary warned Mr. Bowers he was about to exceed his 12 weeks of protected FMLA leave. It told him he could extend his leave of absence by using his vacation time, but that he would run out of vacation time on September 6. The Judiciary warned Mr. Bowers that if he did not return to work by September 10, it would consider him to be on “an unauthorized leave of absence,” and he would be subject to discipline.

On September 4, Mr. Bowers’ lawyer informed the Judiciary that Mr. Bowers would not return to work until October 1. The Judiciary responded that it expected him to return to work on September 10, and repeated that he would be subject to discipline if he did not return to work by that date. The Judiciary claimed it had “experienced significant operational hardship during his absence,” and could not accommodate his disability as a result. The Judiciary subsequently fired Mr. Bowers, effective September 10, 2007, because he had failed to return to work.

The Appellate Division concluded that a jury could reasonably conclude that the Judiciary failed to provide Mr. Bowers a reasonable accommodation for his disability, in violation of the LAD. It noted that Monmouth County did not post Mr. Bowers’ vacant position until October 2008, and did not fill his position until January 20, 2009. It is unclear why the Judiciary could not have accommodated Mr. Bowers’ disability by placing him on an unpaid medical leave through the end of September, and allowing him to return to work on October 1. If it had done so, his position would have been vacant for only 3 weeks, instead of remaining vacant until January 20. The Court noted that although the Judiciary claims budgetary constraints prevented it from replacing Mr. Bowers’ sooner, a jury might reach a different conclusion. Accordingly, it found that the evidence could support a claim of failure to accommodate a disability in violation of the LAD.

New Jersey Judiciary Faces Retaliation Lawsuit

September 26, 2011 | by Jonathan I. Nirenberg

Last week, I discussed the case of Thomas Bowers, an IT Professional who won his appeal of his race discrimination case against the New Jersey Judiciary. That case, Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, also discusses Mr. Bowers’ retaliation claim.

Mr. Bowers filed an internal Equal Employment Opportunity (“EEO”) complaint with his employer, the New Jersey Judiciary. He claimed his new supervisor, Troy Fitzpactrick, was harassing him because of his race. For example, he indicated that Mr. Fitzpatrick gave him assignments with unrealistic deadlines.

According to Mr. Bowers, the day after Mr. Bowers was interviewed about his EEO complaint, Mr. Fitzpatrick called him into his office and asked him about his complaint and work assignments. That meeting eventually became heated, and Mr. Fitzpatrick made threatening statements. Three days later, Mr. Bowers filed a second EEO complaint about Mr. Fitzpatrick’s behavior during that meeting.

Mr. Bowers then went on a medical leave due to anxiety and stress caused by the harassment and discrimination he had been experiencing at work. During the first month of Mr. Bowers’ medical leave, several Judiciary employees and a sheriff’s officer came to Mr. Bowers’ home to take back his laptop, supposedly because they were investigating a security breach. However, there is evidence that the Judiciary had little or no reason to suspect that Mr. Bowers was involved in that security breach.

Approximately three months later, the Judiciary terminated Mr. Bowers’ employment, claiming he “abandoned” his job. However, at that point Mr. Bowers still had not been cleared to return from his medical leave.

The trial court dismissed Mr. Bowers’ retaliation claim, concluding that the lower-level job duties he was assigned were part of his job description, his argument with Fitzpatrick and the confiscation of his laptop were not legally actionable, and his termination was not retaliatory. But New Jersey’s Appellate Division found these conclusions were reasonable, but that it was possible that a jury would instead find that some or all of the Judiciary’s actions toward Mr. Bowers were retaliatory. It therefore sent Mr. Bowers’ case back to the trial court, to give him an opportunity to try to prove his retaliation claim.

The Appellate Division’s decision also addressed Mr. Bowers’ claim that the Judiciary failed to provide a reasonable accommodation for his disability, Anxiety Disorder. I will discuss that aspect of his case in my next article.

IT Professional Given Second Chance in Race Discrimination Case Against New Jersey Judiciary

September 20, 2011 | by Jonathan I. Nirenberg

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.

Third Circuit Rules Employer Can Be Liable if Supervisor’s Discrimination Influenced Disciplinary Hearing

August 26, 2011 | by Jonathan I. Nirenberg

Under the “cat’s paw” theory, a company can be held liable for discrimination based on the discriminatory intent of an employee who influenced an employment decision, even if the person who actually made the decision did not discriminate. Last month, the United States Court of Appeals for the Third Court Circuit applied the cat’s paw theory and ruled a decision to fire an employee was retaliatory even though it was made by a disciplinary review board that did not intend to retaliate against the employee since the review process began as a result of retaliation. The Third Circuit is the federal appellate court that handles appeals from New Jersey. As I discussed in previous articles, earlier this year the United States Supreme Court adopted the “cat’s paw” theory in federal cases, and the New Jersey Appellate Division adopted the cat’s paw theory in November 2008.

In McKenna v. City of Philadelphia, three police officers sued the Philadelphia Police Department for retaliating against them because they objected to the fact that the Department was discriminating against African-American police officers. One of those Officers, Raymond Carnation, claimed he was assigned to work alone in dangerous neighborhoods in the rain and cold in retaliation for his objections to the race discrimination, and that Police Captain William Colarulo threatened to make his life “a living nightmare” if he filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”). Eventually, the Department brought disciplinary charges of insubordination against Officer Carnation, supposedly based on verbal altercation with Captain Colarulo. The disciplinary charges were referred to the Police Board of Inquiry (“PBI”), a board that investigates disciplinary charges against members of the Police Department and recommends the appropriate discipline.

The PBI found Officer Carnation guilty of the charges against him, and recommended that the City should fire him. The Police Commissioner agreed with that recommendation, and the City fired Officer Carnation.

After a trial in the civil lawsuit, a jury found in favor of all three of the police officers, including Officer Carnation, concluding the City had retaliated against them in violation of Title VII of the Civil Rights Act of 1964. Specifically, the jury found that Officer Carnation’s objections to race discrimination was a factor that motivated the Department’s decision to fire him.

One of the primary issues on the appeal to the Third Circuit was whether the City could be held liable for retaliating against Officer Carnation even though the decision to fire him was made by the PBI and the Police Commissioner, neither of which had any intention of retaliating against him. The Court explained that an employer can be held liable for retaliation if there is a direct and substantial relation between the retaliatory action and the harm it caused the employee, as long as the link is not “too remote or indirect.” Based on the facts, it concluded that it was reasonable for the jury to conclude that Captain Colarulo’s retaliatory intent had a direct and substantial relation to Officer Carnation being fired, since his actions led to the PBI’s investigation. As a result, it upheld the jury’s verdict in favor of Officer Carnation.

New York Judge Dismisses Pregnancy Discrimination Class Action Against Bloomberg L.P.

August 18, 2011 | by Jonathan I. Nirenberg

Yesterday, a federal Judge in Manhattan dismissed a class action claim from a gender and pregnancy discrimination lawsuit that the United States Equal Employment Opportunity Commission had filed against Bloomberg L.P. In the case, the EEOC alleged that Bloomberg had engaged in a pattern and practice of discrimination against pregnant employees and female employees upon their return from maternity leaves. Judge Loretta A. Preska, the Chief Justice of the United States District Court for the Southern District of New York, dismissed the class action claim because she found the EEOC had not presented enough evidence to prove a pattern and practice of gender or pregnancy discrimination.

A pattern and practice case is when a group of employees claim a company has a broad practice or systemic pattern of unlawful discrimination. In this instance, the EEOC filed the lawsuit on behalf of female employees who claimed Bloomberg had demoted them, lowered their salaries, reduced the number of employees reporting to them, took away some of their job responsibilities, excluded them from meetings, and/or otherwise subjected them to stereotypes about female caregivers. In addition to the three plaintiffs named in the original lawsuit, 78 other women had joined the case, for a total of 81 class members.

Pregnancy Discrimination 2.jpg In her 64-page opinion in EEOC v. Bloomberg L.P., Judge Preska explained that ordinarily employees have to prove a pattern and practice of discrimination with a combination of statistical and anecdotal evidence of discrimination, to show the discrimination was part of a company-wide pattern or practice. She indicated that it is unusual that anecdotal evidence alone can prove a pattern or practice of discrimination, especially at a large company like Bloomberg, which employs more than 10,000 employees.

However, the EEOC apparently did not have any statistical evidence to support its claim. It also did not have any direct evidence of discrimination, or any evidence of an explicitly discriminatory policy. Instead, it tried to rely only on anecdotal evidence of discrimination. This evidence included the fact that nearly every one of the class members claimed that Bloomberg had decreased her compensation, job responsibilities and/or number of direct reports, either after she became pregnant or after she returned from her maternity leave.

In contrast, Bloomberg had at least two expert witnesses who concluded that there was no pattern or practice of discrimination at the company. Specifically, one of Bloomberg’s expert witnesses, Dr. Michael Ward, used statistics to conclude that class members actually received higher average compensation than non-class members. He also found no significant differences between the raises class members received versus non-class members. Another expert for Bloomberg, Dr. John Johnson, concluded that the class members actually received nearly better raises after maternity leaves than employees who took time off for other reasons.

Ultimately, the Court concluded that while there might be some individual cases of pregnancy and gender discrimination at Bloomberg, the EEOC did not have enough evidence to prove a pattern or practice of discrimination. Accordingly, Judge Preska dismissed the class action from the case. However, the EEOC has indicated that it intends to continue to pursue the individual claims on behalf of the named plaintiffs.