As previously reported, the group of individuals protected by the New York City Human Rights Law (“NYCHRL”) has been expanded to cover the status of being “unemployed.” The Amendment to the NYCHRL -- which goes into effect June 11, 2013 -- prohibits discrimination against job applicants because they are unemployed. The NYCHRL provides for a private right of action against employers.
The NYCHRL -- which covers employers with four or more employees -- will soon prohibit discrimination in hiring, compensation, or the terms, conditions or privileges of employment based “on an applicant's employment status.” Based on the Amendment, employers may not advertise for jobs using postings that list current employment as a requirement to be considered.
The Amendment does provide several exceptions that allow employers to consider unemployment status when making employment decisions. Specifically, an employer may take into consideration an individual’s unemployment when: (i) “there is a substantially job-related reason for doing so”; (ii) “inquiring into the circumstances surrounding an applicant’s separation from prior employment”; (iii) considering substantially job-related qualifications, including, but not limited to: a current and valid professional or occupational license; a certificate, registration, permit or other credential; a minimum level of education or training; or a minimum level of professional, occupation, or field experience”; or (iv) “determining that only applicants who are currently employed by the employer will be considered for employment or given priority for employment with respect to compensation or terms, conditions or privileges of employment.”
As previously reported, the group of individuals protected by the New York City Human Rights Law (“NYCHRL”) has been expanded to cover the status of being “unemployed.” The Amendment to the NYCHRL -- which goes into effect June 11, 2013 -- prohibits discrimination against job applicants because they are unemployed. The NYCHRL provides for a private right of action against employers.
Mitchell Boyarsky, a Director in the Gibbons Employment & Labor Law Department, will speak at the upcoming NJBIA Employment Seminar, "Workplace Harassment & Discrimination: Creating a Culture of Zero Tolerance," on Friday, May 10, 2013 at the Wilshire Grand. Mr. Boyarsky's panel, "Making Training Work," will discuss how to implement internal training programs to prevent harassement. Mr. Boyarsky will also provide insight into how to handle cases that occur when training fails or is neglected.
For additional information on the other panel discussions at this seminar or to register for this event, please click here.
Susan L. Nardone, a Director in the Gibbons Employment & Labor Law Department, will speak at the upcoming NJBIA Employment Seminar on Friday, April 12, 2013, at Forsgate Country Club. Ms. Nardone's panel, "The EEOC: the New Sheriff in Town?," will discuss how the EEOC's actions and enforcement priorities can impact New Jersey businesses.
For additional information on the other panel discussions at this seminar or to register for this event, please click here.
At the Gibbons Second Annual Employment & Labor Law Conference in February, one panel discussion focused on the Equal Employment Opportunity Commission’s ("EEOC") recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.
The panel discussed the EEOC’s late 2012 release of its Strategic Enforcement Plan for the period 2012-2016. The large number of individual, private-sector charges has forced the EEOC to develop a strategic approach to eradicating unlawful employment discrimination. The Plan calls for an "integrated, holistic approach to enforcement from beginning to end, without separating the investigation and conciliation stage of the EEOC’s work from its litigation stage." According to the Plan, the EEOC will focus on a number of areas, including the protection of lesbian, gay, bisexual and transgender (LGBT) employees, pregnancy discrimination, disability discrimination and reasonable accommodation, equal pay, and recruitment and hiring practices.
Director Gigante noted that while the EEOC continues to address individual claims and charges, going forward it will focus on those matters likely to achieve a broader remedial impact, such as cases involving systemic discrimination. The EEOC will use individual complaints as a basis for conducting a more widespread investigation of the company involved to root out other potential problems. Additionally, Director Gigante indicated that the EEOC is teaming up with other federal agencies, including the Department of Labor, the Department of Justice, and the Office of Federal Contract Compliance Programs, to share information.
New York City has expanded the scope of its Human Rights Law (“NYCHRL”) to prohibit job discrimination based upon a job applicant’s status as unemployed. The amendments to the NYCHRL define the term “unemployed” to mean someone “not having a job, being available for work, and seeking employment.” The amendments, which will become effective on June 11, 2013, are groundbreaking in that they make New York City the first jurisdiction in the United States to provide a private right of action for discrimination based on an applicant’s “unemployed” status. If successful in pursuing such claims, denied job applicants may recover compensatory and punitive damages, as well as their attorneys’ fees and costs. In light of this, New York City employers should immediately begin preparing for these coming changes by reviewing their hiring practices, as well as their job advertisements and postings.
Overview of the Amendments to the NYCHRL
The new amendments prohibit employers covered by the NYCHRL (i.e., those employers operating in New York City with 4 or more employees) from considering an applicant’s “unemployment status” with respect to “hiring, compensation or terms of employment.” Furthermore, the amendments prohibit job advertisements or postings, which indicate “being currently employed is a requirement or qualification for the job” or that unemployed individuals need not apply because they will not be considered.
Employee complaints concerning discrimination and harassment occur in nearly every workplace.
Susan L. Nardone, a Director in the Gibbons Employment & Labor Law Department, will serve as a panelist for the upcoming NAWL webinar, "Avoiding the Pitfalls that Cost: Highlighting Best Practices in Labor and Employment Internal Investigations," taking place on Wednesday, February 27, at 11:00 am. This webinar will focus on how to handle common, yet complex, issues likely to arise during the internal investigation of an employee complaint.
Ms. Nardone, along with other female professionals, will play out a virtual fact scenario after which they will offer their professional guidance and advice. Participants will be able to interact with the panelists and offer their own input on best practices. This webinar is free of charge and CLE credits are available. For more information or to register, please click here.
Beginning November 12, 2012, the State of New Jersey will require employers to post a new “equal pay” notice in the work place, to provide the notice to employees and to obtain an acknowledgment of receipt. Effective November 18, 2012, the City of Newark will impose restrictions on employers conducting hiring in the City with regard to the use of criminal background checks for job applicants.
Equal Pay Poster and Notice to Employees
The State of New Jersey has introduced a new requirement for employers with 50 or more employees in New Jersey to post and distribute to employees a notice that State and federal law provides for gender pay equity and prohibits wage discrimination based on gender. The law was signed by Governor Christopher Christie on September 12, 2012 and goes into effect on November 12. Employers must provide the notice to (1) all employees within 30 days after the New Jersey Commission of Labor and Workforce Development issues a form notice to the public, (2) all new hires, (3) all employees annually on or before December 31 of each year and (4) upon the first request of an employee.
Requirements for Employer Compliance
The new law contains explicit requirements and options for employer compliance. It specifies the methods available to deliver the notice:
- By email delivery;
- Via printed material, including, but not limited to, a pay check insert, brochure or similar informational packet provided to new hires, an attachment to an employee manual or policy book, or flyer distributed at an employee meeting; or
- Through an Internet or Intranet website, if the site is for the exclusive use of all workers, can be accessed by all workers, and the employer provides notice to the workers of its posting.
Does your company conduct internal investigations? If so, you should be asking yourself these four crucial questions:
- Is the right person conducting the investigation?
- Is the investigation thorough?
- Is it taking too long?
- Is the company following through?
Employee Participation in Internal Investigation Not Covered by Anti-Retaliation Provision of Title VII, According to Second Circuit
The Second Circuit, in a case of first impression, ruled that an employee is not protected against retaliation prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”) for participating in an investigation of sexual harassment conducted by an employer before a charge of discrimination has been filed with the Equal Employment Opportunity Commission (“EEOC”). Although under Title VII, employers are duty-bound to appropriately remedy discrimination and harassment in the workplace uncovered by such investigation, employers in the Second Circuit can breathe a modest sigh of relief that a negative employment action affecting an employee who claims protection under Title VII based on “participating” in an investigation following an internal complaint is not actionable.
In Townsend v. Benjamin Enterprises, Inc., plaintiff Martha Diane Townsend alleged that defendant Hugh Benjamin, the sole Vice President of Benjamin Enterprises, Inc. (“BEI”) and husband of defendant Michelle Benjamin, the President of BEI, sexually harassed her. Plaintiff Karlean Victoria Grey-Allen, BEI’s Human Resources Director, conducted an investigation in which she allegedly, inappropriately revealed confidential information during the investigation. Michelle Benjamin terminated Grey-Allen before she completed the investigation, which Grey-Allen claimed was retaliatory based on her participating in the internal investigation.
The District Court dismissed Grey-Allen’s retaliation claim on summary judgment. After a trial, a jury returned a verdict in favor of Townsend against all defendants. The defendants moved for judgment as a matter of law or for a new trial, which the District Court denied. The District Court found that the Farragher/Ellerth affirmative defenses to sexual harassment (established by showing the employer exercised reasonable care to prevent and promptly correct any sexually and harassing behavior, and the employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer) are unavailable when the supervisor who committed the sexual harassment, in this case Hugh Benjamin, is sufficiently senior such as to constitute a “proxy” or “alter ego” of the employer. Absent Benjamin’s alter ego status, under Farragher/Ellerth the company could have escaped liability for harassment if it had demonstrated that it conducted an investigation of Townsend’s complaints and took appropriate remedial action.
In a decision reversing nearly three decades of prior rulings, the Equal Employment Opportunity Commission (“EEOC”) has ruled that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.” In doing so, the EEOC – the agency of the United States Government charged with the enforcement of federal anti-discrimination laws – has expanded upon the definition of discrimination “because of sex” expressly bringing transgender individuals within its purview.
In Macy v. Holder, the Complainant, Mia Macy, a transgender woman, had applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency at its Walnut Creek crime laboratory. While still presenting as a man, and during a preliminary telephone conversation with the Director of the laboratory, during which Macy’s qualifications were discussed, the Director told her that she would be able to have the position “assuming no problems arose during [the] background check.” In a later conversation with the Director only a few weeks later, the Director reasserted that the job was hers pending the completion of the background check. Shortly thereafter, Macy informed “Aspen of DC” (a government contractor responsible for filling the position) that she was in the process of transitioning from male to female and requested that Aspen inform the Director of the Walnut Creek laboratory of this change. Approximately one week later, Macy received an email from Aspen stating that, due to federal budget reductions, the position at Walnut Creek was no longer available. Upon following up with an agency EEO counselor, however, she was told that the position had actually been filled with a different applicant who was the “farthest along in the background investigation.” Believing this reason to be a pretext for discrimination, Macy filed a complaint with the EEOC, which administratively adjudicates employment discrimination claims involving federal government employees and applicants. On her complaint form, Macy checked off “sex” and the box “female,” and then typed in “gender identity” and “sex stereotyping” as the basis of her complaint.
“As used in Title VII,” the EEOC found, “the term ‘sex’ encompasses both sex - that is, the biological differences between men and women - and gender.” Citing the United States Supreme Court’s landmark holding in Price Waterhouse v. Hopkins and its progeny, the EEOC held that Title VII bars discrimination not only on the basis of biological sex, but because of gender stereotyping, as well. The EEOC reasoned that “discrimination based on sex includes discrimination based on a failure ‘to conform to socially-constructed gender expectations.’” For example, the EEOC theorized that Macy could establish a case of sex discrimination by showing one of the following scenarios: (1) that she did not get the job because the employer believed that biological men should consistently present as men and wear male clothing; or (2) that she did not get the job because the Director was willing to hire her when he thought she was a man, but was not willing to hire her once he found out that she was now a woman. “Thus,” the EEOC found, “a transgender person who has experienced discrimination based on his or her gender identity may establish a prima facie case of sex discrimination through any number of different formulations.”
On Wednesday, April 25, 2012, the Equal Employment Opportunity Community issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, updating and clarifying its prior guidance on the subject. The good news? Employers may continue to use criminal background checks as a screening tool for applicants and employees. However, employers are specifically discouraged from asking about a criminal record on the application and are encouraged to conduct an individualized assessment of the applicant/employee when job exclusion occurs because of a criminal record. Employers should review their policies to ensure compliance with the EEOC’s latest recommendations.
The new guidance contains a lengthy discussion of arrest and conviction statistics among the population, emphasizing that individuals in certain protected classes – African-American and Hispanic men in particular – are more likely to be adversely affected by an otherwise neutral criminal background check policy. Concerns about the disparate impact on these groups provides the foundation for the EEOC’s position on the use of and parameters for criminal background checks.
Many employers’ policies already utilize the factors articulated by the Eighth Circuit in Green v. v. Missouri Pacific Railroad, further developed by the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority, and incorporated in the latest and prior EEOC guidance. The Green factors – the nature of the crime, the time elapsed, and the nature of the job – are used to determine whether an exclusion is job-related for the position in question and consistent with business necessity. In considering the nature of the offense, the EEOC suggests looking at the harm caused by the crime, the legal elements, and the severity. The EEOC offers no specific guidance on the appropriate time period, indicating that it depends on the facts and circumstances, but suggests that recidivism rates may provide guidance. For the nature of the job, the EEOC recommends looking at the essential functions and duties of the job and the environment in which it is performed.
In the latest chapter of the ongoing case of Quinlan v. Curtiss-Wright Corporation, the New Jersey Appellate Division has ruled that while an employer, found to have terminated an employee in violation of the New Jersey Law Against Discrimination (“the LAD”), has the burden of persuasion to establish a plaintiff’s failure to mitigate damages with respect to back pay, the employer does not have the burden of persuasion with respect to a plaintiff’s failure to mitigate future losses, including front pay. In reversing a jury award for front pay in the amount of $3,650,318 because of improper jury instructions on the front pay issue, the Appellate Division suggested a framework for proper jury instructions on front pay damages and referred the issue to the Model Civil Jury Charge Committee. The Court also reversed the jury’s punitive damages award of over $4.5 million, concluding that that award was linked to the front pay award. The Court held that a new trial was required on both the front pay issue and on punitive damages.
As we previously reported in 2009 and 2010, the Quinlan case has been the subject of much judicial review in recent years. Briefly summarized, the plaintiff, Joyce Quinlan, was employed as the Executive Director of Human Resources at Curtiss-Wright Corporation. She alleged that Curtiss-Wright discriminated against her in violation of the LAD by giving a promotion she sought to a man who was then made her supervisor. To support her case, Quinlan, due to her position in the Human Resources department, was able to collect over 1,800 pages of confidential documents, including a copy of her supervisor’s prior performance appraisal. Rather than produce this document in the course of discovery during the lawsuit, Quinlan’s counsel surprised the supervisor with it at his deposition. Shortly thereafter, Curtiss-Wright terminated Quinlan’s employment for breach of company policies and theft of company property. Quinlan then added a retaliation claim to her pending lawsuit, claiming that Curtiss-Wright had terminated her in retaliation for engaging in “protected activity” in prosecuting her discrimination claim.
At the conclusion of the case, the jury awarded Quinlan an aggregate sum of $4,565,479 in compensatory damages, including $3,650,318 in future (i.e., post-trial) economic losses, including front pay. In addition, the jury awarded Quinlan $4,565,479 in punitive damages, a figure that matched the aggregate award for compensatory damages. After appeals of other discrete issues were ultimately decided by the New Jersey Supreme Court, the case was remanded to the Appellate Division for a determination of issues not considered by the Supreme Court, including the propriety of the front pay award and the adequacy of the jury instructions regarding same.
The Equal Opportunity Commission (“EEOC”) today published its final regulations and commentary concerning the “reasonable factors other than age” provision of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), as that provision pertains to claims of disparate impact. A disparate impact claim is one that alleges that the implementation by an employer of a policy or practice, although non-discriminatory on its face, has had an adverse impact on a category of employees protected by the laws against discrimination in employment.
Although Congress in 1991 specifically amended Title VII of the Civil Rights Act to provide for disparate impact claims, 42 U.S.C. § 2000e -2(k), the ADEA has never expressly allowed such claims. Nevertheless, in Smith v. City of Jackson, 544 U.S. 228 (2005), the U.S. Supreme Court held disparate impact claims could be asserted under the ADEA. The Court ruled, however, that there is a significant distinction between disparate impact claims brought under Title VII (which prohibits discrimination based on race, color, religion, sex or national origin) and disparate impact claims under the ADEA (which prohibits discrimination based on age for employees 40 years of age and older). Under Title VII, once the plaintiff demonstrates that the employer’s policy or practice has had a statistically adverse impact on a protected group, the employer, to avoid liability, must demonstrate that the policy or practice “is job related for the position in question and consistent with business necessity.” Citing to the “reasonable factors other than age,” provision of the ADEA, the Court in Smith held that employers faced with an age discrimination disparate impact claim were not required to make a showing of “business necessity” but need only demonstrate that its policy or practice is “reasonable.” Thus, as the Court ruled, “disparate impact liability under the ADEA is narrower than under Title VII.”
The new regulations appear to be consistent with Supreme Court decisions setting forth the parameters of disparate impact claims in at least three respects. First, they provide that plaintiffs alleging that an age-neutral policy or practice has had a disparate impact on older workers have the burden to isolate and identify the specific policy or practice that allegedly caused the statistical disparities. 29 C.F.R. § 1625.7(c); Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). Second, if the employer asserts a “reasonable factors other than age” defense (referred to as the “RFOA defense”), it is the employer who bears the burden of production and persuasion to establish the defense. 29 C.F.R. § 1625.7(d); Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008). Third, the reasonable factors other than age provision is not available as a defense to a claim of disparate treatment (intentional discrimination). 29 C.F.R. § 1625.7(d); Smith v. City of Jackson, 544 U.S. at 238-39.
Third Circuit Finds That Failing to Produce Original Documents May Constitute Sanctionable Spoliation
Although in recent years employers have become increasingly focused on the preservation, discovery and production of electronically-stored information, the Third Circuit’s January 4, 2012 decision in Bull v. United Parcel Service serves as a reminder to companies that original documents can and often do play a critical role in employment litigation matters. The preservation and discovery of originals should not be overlooked. Employers should be certain to both request original documents in discovery (and pursue their production through motion practice as necessary) and take necessary steps to preserve originals when litigation is threatened or commenced.
In Bull, the Third Circuit was asked to review the District of New Jersey’s dismissal with prejudice of the plaintiff’s discrimination claim as a sanction for her failure to produce original notes from her health care provider. The primary issue in Bull was whether the production of only copies, when the original documents were available, constituted spoliation and justified the harsh sanction imposed by the District Court. The Third Circuit agreed with the District Court, in part, holding that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information.” However, the Court determined that based upon the facts of this case, the District Court had abused its discretion when it dismissed the plaintiff’s claims with prejudice.
Factual and Procedural Background
After suffering a work-related injury to her shoulder. UPS offered Plaintiff Lauren Bull a temporary work assignment and, when that assignment ended, she was out of work on Workers’ Compensation. Bull returned to work with restrictions imposed by her health care provider that, in the view of UPS, made it impossible to assign her work. Thereafter, Bull submitted two notes, a few months apart, from a different health care provider. UPS found the two notes to be inconsistent and illegible and requested, but was never provided with, the originals. Bull did not respond to requests that she provide a new doctor’s note and more information, and her discrimination suit followed.
New Jersey Framework for Analyzing Attorneys' Fee Awards, Including Contingency Fee Enhancements, Unchanged
Last week, the New Jersey Supreme Court reiterated that lawyers who represent clients on a contingency basis in disputes brought under New Jersey laws that permit the recovery of attorneys’ fees can recover an additional fee “enhancement” pursuant to the framework the Court set forth nearly 20 years ago in Rendine v. Pantzer, 141 N.J. 292 (1995). The decision, Walker v. Guiffre, Case Nos. 72-10, 100-10 (N.J. Jan. 25, 2012), is noteworthy for businesses that all too frequently must weigh the risk of paying their opponents’ attorneys’ fees when deciding whether to settle disputes – particularly those companies that wishfully thought the reins on contingency fee enhancers might be tightened in light of two recent decisions by New Jersey appellate courts.
The New Jersey Appellate Division ruled in Walker v. Giuffre, 415 N.J. Super. 597 (App. Div. 2010) and Humphries v. Powder Mill Shopping Plaza, that the framework established in Rendine required modification to comply with the U.S. Supreme Court’s decision in Perdue v. Kenny A., 130 S. Ct. 1662 (2010). The Court in Perdue examined attorneys’ fee awards under federal laws and held, in part, that contingency fee enhancements were improper under federal fee-shifting statutes. The N.J. Supreme Court in Walker analyzed the New Jersey appellate decisions on a consolidated basis and explained that the U.S. Supreme Court decision in Perdue had no impact on the longstanding holding of Rendine. It reasoned that the N.J. Supreme Court already had considered the very arguments and considerations set forth in Perdue when it decided Rendine, including the conclusion that contingency fee enhancements are improper under federal fee-shifting statutes. In short, the framework set forth in Rendine, which permits contingency fee enhancements under New Jersey fee-shifting statutes, remains good law.
Among New Jersey laws that permit the recovery of attorneys’ fees and, therefore, the potential for a contingency fee enhancer, are the two laws most frequently implicated in New Jersey employment lawsuits: the New Jersey Conscientious Employee Protection Act (“CEPA”) and the New Jersey Law Against Discrimination (the “LAD”). A number of laws outside the employment context likewise place businesses on the defensive and permit the recovery of attorneys’ fees, including the New Jersey Consumer Fraud Act (“CFA”). (A listing of New Jersey statutes that permit fee-shifting can be found here.) Notably, the court’s decision in Walker arose from claims brought under the CFA and LAD.
On January 11, 2012, the United States Supreme Court for the first time recognized the so-called “ministerial exception” to workplace discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, the Court unanimously found that the Establishment and Free Exercise Clauses of the First Amendment bar wrongful termination suits brought on behalf of “ministers” against their churches. While this decision is helpful for religious group employers, including religious schools and places of worship, the Court left open the important question of which employees actually qualify as a “ministers.” Accordingly, the decision may create some confusion for religious group employers going forward.
The underlying facts are straightforward. Cheryl Perich (“Perich”) worked at the Evangelical Lutheran Church and School (“School”) in Redford, Michigan as a “called” teacher. The School classified its teachers into two categories: “called” and “lay.” Unlike lay teachers, called teachers had to complete certain academic requirements, including a course of theological study. In 2004, Perich was diagnosed with narcolepsy, which required her to take a leave of absence from her employment. Upon her attempted return to work, the School asked her to resign. Perich refused and threatened to sue the School for disability discrimination. The School then terminated her employment because of her threat and specifically stated that its faith required disputes be resolved internally rather than through litigation. As a result, the U.S. Equal Employment Opportunity Commission filed a lawsuit against the School on behalf of Perich alleging that it had retaliated against Perich in violation of the Americans with Disabilities Act. Perich intervened in that lawsuit by filing her own complaint alleging claims under Michigan’s Persons with Disabilities Civil Rights Act.
The district court dismissed the EEOC’s and Perich’s claims by applying the ministerial exception, a doctrine that was judicially developed by the lower courts and which exempts religious institutions from certain wrongful termination lawsuits. The Sixth Circuit, however, reversed the lower court by finding that the ministerial exception did not apply in this case because Perich spent the vast majority of her time teaching a secular curriculum. Perich spent only 45 minutes per day on religious activities.
On August 17, 2011, the Court of Appeals for the Third Circuit rendered its decision in McKenna v. City of Philadelphia, the first significant cat’s paw theory case out of the Third Circuit since the United States Supreme Court’s March 2011 decision in Staub v. Proctor Hospital, which was the subject of a previous Employment Law Alert post. The Staub decision addressed the circumstances under which an employer can be held liable for the discriminatory or retaliatory animus of a nondecisionmaker - often referred to as the “cat’s paw” theory. The primary issue in McKenna was whether an intervening act between the alleged retaliatory conduct and the employee’s termination - a hearing before a neutral board - was sufficiently independent to break any causal link between the allegedly retaliatory act and the employment action. Based upon the underlying facts of this particular case, the Court determined that it was not.
Plaintiff Raymond Carnation was one of three police officers who alleged that they were retaliated against for complaining about racial tension within their 7-member squad. Carnation was vocal about his concerns, raising them with both the squad supervisor, Moroney, and the squad commander, Colarulo. Carnation claimed that he suffered various consequences as a result of his complaints, including an assignment to unassisted duty in a dangerous part of the City and a threat by Colarulo that he would make his life a “living nightmare” if he filed an EEOC Charge. As a result of depression and anxiety caused by this treatment, Carnation was put on restricted duty outside of the District in which he had been working. While on restricted duty, and although he had been specifically told not to do so by Colarulo, Carnation contacted Moroney over Memorial Day weekend to once again voice his concerns and then contacted Colarulo at his home while off duty to report the outcome of the discussion with Moroney. Colarulo subsequently brought various disciplinary charges against Carnation for the Memorial Day calls.
The charges resulted in a hearing before the Police Board of Inquiry (PBI), a three-member adjudication unit designed to hear evidence and decide whether the officer is guilty of the charges and, if so, to make sanction recommendations. Carnation and the City were represented by counsel at the PBI hearing and testimony was offered by both sides. The PBI found Carnation guilty of the charged lodged by Colarulo and even added an additional charge, on its own. The PBI recommended termination and the decision was ultimately made by the Police Commission to terminate Carnation’s employment.
Following a jury trial on Carnation’s retaliation claim, the jury entered a verdict in Carnation’s favor. The City’s motion for judgment as a matter or law and/or notwithstanding the verdict was denied by the District Court, which held that “because the events of [Memorial Day] weekend formed the grounds for the disciplinary charges against [Carnation] and the proceedings before the PBI, a reasonable jury could find that Colarulo’s animus played a substantial role in the ultimate decision by the PBI to recommend Carnation’s termination.” An appeal followed.
Joining several of its sister courts, the Third Circuit has held that, unless accompanied by a change in pay, benefits, or employment status, placement on a performance improvement plan (“PIP”) does not amount to an adverse employment action for purposes of the Age Discrimination in Employment Act (“ADEA”). Noting concerns over “naked claims of discrimination and greater frustration for employers seeking to improve employees’ performance,” the Reynolds v. Department of Army Court reinforces the notion that employers can utilize PIPs as a means to improve employee performance and conduct with decreased apprehension that the employee will initiate legal action based on the presence of the PIP alone.
Plaintiff Raymond Reynolds was employed by the U.S. Army as an engineer. In August 2004, Reynolds’ supervisor evaluated Reynolds’ performance, determined that he had failed to meet two out of his seven job objectives, and subsequently placed him on a PIP on November 3, 2004. Under the PIP, Reynolds was given 90 days either to bring his performance to an acceptable level or face the possibility of reassignment, demotion, or termination. One day after receiving the PIP, Reynolds applied for the Voluntary Early Retirement Authority (“VERA”) and Voluntary Separation Incentive Pay (“VSIP”) programs, which confer certain benefits to eligible federal employees who accept an early retirement and/or separation from federal service.
In December 2004, Reynolds submitted a complaint to the Equal Employment Opportunity Commission, alleging age discrimination. Subsequently, Reynolds was offered a 90-day extension on his PIP, but was denied an extension of time for accepting VERA/VSIP benefits (for which he had by then been approved). Reynolds declined the PIP extension, but stated that he would have accepted the extension and remained on the job had he also received an extended window for electing VERA/VSIP.
Instead, on January 3, 2005, Reynolds exercised his early retirement option through VERA/VSIP and, in return, received an incentive payment of $25,000 and a reduced annuity.
On June 20, 2011, the U.S. Supreme Court issued its much-anticipated decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __ (2011). The decision reversed the Ninth Circuit’s 2010 en banc decision and effectively halted what would have been the largest employment discrimination class action in history against the nation’s largest private employer. The Court’s 5-4 opinion is a decisive victory for businesses that reshapes the landscape for employment-related class action litigation and class action litigation in general.
The Dukes plaintiffs sued Wal-Mart on behalf of a nationwide class of 1.5 million current and former female Wal-Mart employees, alleging that the company discriminated against them on the basis of sex by denying them equal pay or promotions. Plaintiffs claimed that Wal-Mart discriminates against women by allowing Wal-Mart’s local managers to exercise discretion over pay and promotions, which results in male employees disproportionately being favored over female employees. The District Court certified the class action and the Ninth Circuit affirmed, concluding that the District Court properly certified the case as a class action under the Federal Rules of Civil Procedure.
Beginning on June 1, 2011, New Jersey employers are prohibited from discriminating against the unemployed in print and Internet job advertisements. Specifically, pursuant to section one of the recently-enacted statute, employers may not knowingly or purposefully publish a job posting that states any of the following:
- current employment is a job qualification;
- currently unemployed candidates will not be considered; or
- only currently employed job applicants will be considered.
The law, however, does not, prohibit an employer from publishing a job posting that only seeks applicants who are currently employed by that employer.
Section two of the job advertisement law provides that employers who violate the law are subject to a civil penalty of up to $1,000 for the first violation, $5,000 for the second violation and $10,000 for third and subsequent violations. Accordingly, in order to avoid these penalties and to ensue compliance with the law, employers should carefully review the qualifications listed in any job postings that will be published on or after June 1, 2011, as well as those postings that first may have been published prior to that date, but which will remain public thereafter.
Carla N. Dorsi is an Associate in the Gibbons Employment Law Department.
It is now clear that an employer may be held liable for unlawful discrimination when it unwittingly terminates an employee based on a supervisor's recommendation or false allegations motivated by discriminatory animus. The United States Supreme Court, in Staub v. Proctor Hospital, No. 09-400, 562 U.S. _ (March 1, 2011), has just resolved a split in the lower courts over the reach of the so-called "cat's paw" theory of liability, which gets its name from the 17th century fable by French poet Jean de La Fontaine. In the fable, a monkey convinces a cat to remove chestnuts from a fire. The cat complies, pulling out the chestnuts one at a time, burning its paw in the process, as the monkey feasts on the chestnuts. In the employment context, the "cat's paw" refers to a situation in which a biased subordinate employee, who lacks decision-making authority, uses the final decisionmaker as a dupe to trigger a discriminatory employment action. In Staub, the Court held that if the decision to terminate is based in whole or in part on the malicious recommendation or false allegations from a supervisor who has discriminatory motives, the employer can be held liable under federal statutes that prohibit employment discrimination.
Although the Supreme Court's decision arose out of an employee's claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court's holding will likely be applied with equal force to Title VII discrimination cases, given Title VII's similar statutory language, which the Court itself noted. In light of this decision, employers should ensure that ultimate decisionmakers do not simply rubberstamp the recommendations of immediate supervisors, but instead attempt to verify that a legitimate reason for discipline or termination exists and that immediate managers are not pursuing discipline because of bias. To the extent possible, employers should also investigate an employee’s claim of discrimination prior to implementing a termination decision.Continue Reading...
New Jersey Appellate Division Holds That Absence of Emotional Distress Damages Award Does Not Preclude Consideration of Punitive Damages
The New Jersey Appellate Division recently held in Rusak v. Ryan Automotive, LLC that a plaintiff was entitled to further proceedings on her punitive damages claim following a jury verdict in her favor on her hostile work environment and retaliation claims even though the jury did not award her emotional distress damages and rejected her separate intentional infliction of emotional distress claim. Although the case involved unique circumstances that are unlikely to be present in future matters, the decision serves as a reminder that the absence of an emotional distress award does not preclude further proceedings on punitive damages.
Rusak, a sales representative for a BMW dealership, presented evidence that the general manager of the dealership screamed and cursed at her, called her a “dumb… stupid blonde,” asked her if she was menstruating and told her and another female employee graphic stories about his sexual exploits. In addition, when Rusak complained to the general manager about the inappropriate behavior of a male co-employee, the general manager ignored her complaint and told others of his plans to fire her. The jury found that the general manager had created a hostile work environment and retaliated against Rusak and awarded wage loss damages only.
Two specific jury interrogatories on the verdict sheet addressed Rusak’s alleged emotional distress, asking the jury whether “the acts of the [d]efendants constitute such willful, wanton and reckless conduct that you find for [plaintiff] on the legal theory of intentional infliction of emotional distress” and whether the plaintiff should be “awarded damages to compensate for her emotional pain and mental anguish.” In both instances, the jury answered “No,” thus denying Rusak’s intentional infliction of emotional distress claim and denying Rusak damages for emotional distress on the other claims for which the jury found liability. The trial judge viewed the jury’s response to these questions as an indication that the jury did not intend to award punitive damages and did not allow further proceedings on the punitive damages claim.
New Jersey Appellate Division Holds that Anti-Harassment Policy Alone Cannot Shield Employers from Liability
An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for sexual harassment. As the New Jersey Appellate Division recently made clear, however, the mere existence of such a policy is insufficient to insulate an employer from liability for its employee’s sexually harassing conduct. Though an unpublished decision, Allen v. Adecco, Inc., provides a powerful reminder that to protect an employer from liability, an anti-harassment policy must be widely publicized, supported by training, and routinely enforced. Indeed, in Allen, although the employer promptly investigated plaintiff’s harassment claim and took prompt remedial action, the court ruled that the employer might still be held accountable if the harassment could have been prevented in the first place but for the employer’s alleged insufficient publication and training with regard to its anti-harassment policies.
Under New Jersey law, an employer will be liable for sexual harassment by a supervisor when the employer is negligent in protecting against a hostile work environment and the supervisor (1) is acting within the scope of the employment when engaging in harassment and (2) has abused delegated authority. An anti-harassment policy is relevant to the issue of the employer’s negligence in protecting against sexual harassment and may also provide the basis for an affirmative defense to vicarious liability imposed on an employer for a supervisor’s harassment of another employee under agency principles.
The U.S. Supreme Court has just decided that an employer cannot “get back” at an employee who has complained about discrimination by going after other employees related to or in a close relationship with the complaining employee. By ruling in favor of a man who was fired after his fiancée complained about alleged sex discrimination at the same company, the Court’s decision in Thompson v. North American Stainless, LP has expanded Title VII anti-retaliation jurisprudence to encompass employees who themselves do not engage in “protected activity” as defined by the statute. Finding that the fiancée fell within the “zone of interests” of protection afforded by Title VII, he thus qualified as a “person aggrieved with standing to sue.” The decision is significant for employers because it establishes important precedent authorizing retaliation claims by employees other than the employee who made the original complaint of discrimination. Employers should make sure that their written anti-retaliation policies make clear to managers and supervisors that, after a claim of discrimination has been made, it is against company policy to retaliate not only against the employee making the claim but against any employee related to or in a close relationship with the complaining party.
Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless (“NAS”). Their relationship was common knowledge to their employer. In February 2003, Regalado filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging sex discrimination. Three weeks later, NAS fired Thompson. Conciliation efforts with the EEOC were unsuccessful, and Thompson then sued NAS under Title VII, claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. Reasoning that because Thompson did not “engage in any statutorily protected activity, either on his own behalf or on behalf of Regalado,” and that he “was not included in the class of persons for whom Congress created a retaliation cause of action,” the district court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” The Sixth Circuit Court of Appeals affirmed.
Though the decision has received a great deal of attention because of the controversy, as played out in the separate opinions of Chief Justice Rabner and Associate Justices Rivera-Soto and Hoens, over whether the temporary appointment to the New Jersey Supreme Court of Judge Stern of the Appellate Division is constitutional, the recently decided case of Henry v. New Jersey Department of Human Services, is of special interest to employers, as it appears to expand the circumstances under which a plaintiff can invoke the equitable device known as the “discovery rule” to toll the 2-year statute of limitations applicable to claims under the Law Against Discrimination (LAD). In Henry, the Court, by a vote of 5-1 with one abstention, affirmed the Appellate Division’s holding dismissing plaintiff’s retaliation claim but reversed the Appellate Division’s dismissal of plaintiff’s discrimination claim. The Court remanded the discrimination claim for the trial court to conduct a hearing to ascertain whether plaintiff could not have reasonably discovered she had claim within 2 years of the accrual of her cause of action.
Plaintiff, Lula Henry, an African-American, holding a Master of Science Degree in Nursing, secured a full-time entry-level nursing position at the Trenton State Psychiatric Hospital (the Hospital) in April 2004. Upon accepting the position, she developed a concern that the Hospital was engaging in discriminatory hiring practices, as the only other two women who possessed a Master’s Degree, both of whom were Caucasian, were employed in more advanced positions. A member of the Hospital’s human resources department angrily advised plaintiff, however, that employees were only eligible for advancement after successfully completing one full-year of employment. During the Summer of 2004, plaintiff made a written request seeking that she be reclassified based upon her qualifications and sent a copy of her letter to a State Assemblyman. Afterwards, a human resources manager nastily told her that she had stood a chance of being reclassified "until he received a letter from some bureaucrat downtown." In response to this conversation, plaintiff resigned and later secured employment elsewhere.
In the Spring of 2006, plaintiff received information from a union representative that confirmed many of the suspicions she had when she was hired. Specifically, plaintiff learned that a Nigerian nurse had contested the placement of a less qualified Caucasian nurse and also learned that a Caucasian nurse with credentials less extensive than her own was hired into a non-entry level position.
Individual Paychecks Re-start the Statute of Limitations in Discriminatory Compensation Claims Under the NJLAD
Peace of mind. That is what the two-year statute of limitations period applicable to claims filed under the New Jersey Law Against Discrimination (“LAD”) afforded employers. With respect to discriminatory compensation claims, however, the New Jersey Supreme Court’s decision in Alexander v. Seton Hall University has destroyed that peace of mind, holding that each individual paycheck effecting a discriminatory compensation decision constitutes an actionable unlawful employment practice. No longer is the two-year statute of limitations measured from the date of the compensation decision.
At issue before the Court in Alexander were the claims of three female professors who alleged that they were paid unequal wages on the basis of gender and age in violation of the LAD. The Appellate Division had affirmed the trial court’s decision that a portion of the professors’ claims were untimely because the compensation decisions at issue were made more than two years before the professors filed their complaint and thus those claims were barred by the two-year statute of limitations applicable to LAD claims. In their appeal to the New Jersey Supreme Court, the professors argued that no portion of their pay claims were time-barred and that “each paycheck that perpetuates a discriminatory wage continues the original LAD violation and sweeps in all prior and current discriminatory, disparate paychecks.” The University, on the other hand, argued that the statute of limitations period commenced as of the date that the allegedly discriminatory compensation decision was made. The New Jersey Supreme Court did not accept the professors’ “continuing violation” argument in its entirety but did hold that each paycheck received by an employee serves to “restart” the two-year limitations period. Logically then, a plaintiff should be able to assert claims for discriminatory compensation only with regard to compensation received within two years of the filing of plaintiff’s complaint - and the Supreme Court so held.
The EEOC issued its final rule implementing Title II of the Genetic Information Nondiscrimination Act (“GINA”) and provided background information regarding the new regulations, which shall take effect on January 10, 2011. GINA generally restricts employers and other covered entities from deliberate acquisition of genetic information, prohibits use of genetic information in employment decision-making, and strictly limits disclosure of genetic information.
Highlights from the EEOC regulations include:
- “Genetic Information” is broadly defined and includes information about the genetic tests of an individual or his family members, as well as information regarding an individual’s family medical history. The regulations also provide examples of tests that qualify as “genetic tests” (e.g. a test to determine whether an individual has the genetic variants associated with a predisposition to breast cancer) and tests that do not qualify (e.g. cholesterol and HIV tests).
- The EEOC urges employers to include specific language in medical exam/inquiry forms, such as those accompanying pre-offer and post-offer medical exams and fitness-for-duty exams to help protect against unlawful disclosures. By using this “safe harbor” language, employers can shield themselves from liability under GINA should they receive protected genetic information in response to these inquiries.
Supreme Court Hears Oral Argument on "Cat's Paw" Theory of Liability; Decision Anticipated Later This Term
For the first time the United States Supreme Court is poised to provide guidance on the “cat’s paw” theory of liability in employment discrimination cases. Under the “cat’s paw” theory, an employee alleging to be the victim of unlawful discrimination seeks to impose liability on the employer in situations where a non-biased decision-maker is influenced by another, usually subordinate, employee who is, in fact, motivated by discriminatory animus. In Staub v. Proctor, the Supreme Court recently heard oral argument on the proper application of the “cat’s paw” theory, which gets its name from the 17th century fable by French poet Jean de La Fontaine. In the fable a monkey convinces a cat to remove chestnuts from a fire. The cat complies, pulling out the chestnuts one at a time, burning her paw in the process, as the monkey feasts on the chestnuts.
In Staub, a hospital employee and an Army reservist, claimed that his employer’s decision to terminate him was influenced by the anti-military animus of his immediate supervisors, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). The trial court gave a limited cat’s paw jury instruction, explaining that “animosity of a co-worker toward the Plaintiff on the basis of Plaintiff’s military status may not be attributed to Defendant unless that co-worker exercised such singular influence over the decision maker that the co-worker was basically the real decision maker.” The jury sided with Staub, finding that the decision-maker had been improperly influenced by the plaintiff’s immediate supervisors who possessed anti-military animus. The Court of Appeals for the Seventh Circuit reversed, however, holding that the trial judge failed to make a threshold determination of whether there is evidence that a biased supervisor exerted “singular influence” on the ultimate decision-maker before allowing a jury to hear evidence regarding the alleged animus of subordinate employees. The Seventh Circuit concluded that the defendant hospital was not liable, reasoning that employers are not liable when the decision-maker may be counseled by those with discriminatory intent but where lawful grounds for termination are supported by the decision-maker’s own independent investigation.
At oral argument before the Supreme Court, plaintiff's counsel asserted that USERRA should be governed by traditional agency principles, thereby enabling the anti-military bias of the plaintiff's immediate supervisors to be imputed to the hospital. The plaintiff argued that the appropriate test in this case is whether plaintiff's military service was a "motivating factor" of the plaintiff's immediate supervisors' exercise of authority granted to them by their employer in taking steps to affect plaintiff's discharge. Counsel for the defendant hospital countered that the Seventh Circuit correctly articulated the "cat's paw" theory of liability applicable in this particular case. In addition, counsel highlighted the fact that the hospital had conducted an independent investigation after receiving complaints by plaintiff's immediate supervisors, and that the independent investigation was not tainted by anti-military animus. The Court, in particular Justice Alito, expressed concern regarding whether the recognition of the "cat's paw" theory of liability in this case would extend the theory beyond USERRA claims to Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act. Cases in a number of circuits have addressed the "cat's paw" theory in the context of these anti-discrimination laws but none of these cases ever reached the Supreme Court.
On an issue of first impression in the Third Circuit whether “a failure-to-promote claim” constitutes “discrimination in compensation” as prohibited by the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”) the Court of Appeals recently held that a failure to promote claim is not the same as a discrimination in compensation claim. Consequently, the plaintiff in Noel v. The Boeing Company could not avail himself of the FPA’s more flexible statute of limitations period.
By way of brief background, before a potential plaintiff can file a lawsuit asserting a violation of Title VII, a plaintiff must first file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 days from the date of the unlawful employment practice or 300 days in states that have human rights agencies. When compensation decisions are at issue, the FPA states that each paycheck reflecting the allegedly discriminatory compensation decision constitutes the unlawful employment practice, as opposed to the date the compensation decision was made. Thus, each paycheck received by the plaintiff serves to “restart” the statute of limitations period.
The Facts and Procedural History
Plaintiff Emmanuel Noel, a black Hatian national, started working for Boeing in 1990. On occasion, Boeing would offer its employees the ability to work offsite with greater pay and additional training. Any promotions or increases associated with an offsite assignment were limited to the period the employee was offsite. Noel and two white co-workers were assigned to the same offsite facility. In May 2003, after seven months of working at the offsite facility, Noel’s co-workers were promoted to higher-paying positions, while Noel remained in the same lower-paying position. Noel complained internally and to the union representatives about these promotions. Eighteen months later, Noel filed a charge of discrimination with the EEOC and, fifteen months after he filed the charge, he filed a Title VII complaint against Boeing in Federal Court. In his Complaint, he complained inter alia that Boeing’s failure to promote him in May 2003 constituted race and national origin discrimination in violation of the Title VII. Following a four-day bench trial, the District Court ruled, in relevant part, that Noel’s claims were time-barred because he failed to exhaust administrative remedies, as required by Title VII, by first filing an EEOC charge within 300-days after the alleged adverse employment action.Continue Reading...
As employers are faced in the great majority of discrimination, harassment and whistle-blowing cases with claims by employees of emotional distress, employers should keep in mind that potentially fruitful sources of valuable information to defend against such claims may be the social networking sites (“SNS”) maintained by the employees bringing these claims. In EEOC v. Simply Storage Management, L.L.C., 2010 U.S. Dist. LEXIS 52766, the EEOC brought suit in federal court in Indiana alleging that Simply Storage was liable for the sexual harassment of a number of its employees. The EEOC asserted that while three of these claimants had suffered “garden variety” emotional distress that was not ongoing, two claimants had suffered more serious emotional injuries for which they had sought medical treatment and that one claimant had been diagnosed with post traumatic stress disorder. Both of these employees maintained SNS accounts on Facebook and MySpace. Maintaining that information on these sites was relevant to the employees’ emotional distress claims, Simply Storage sought discovery of the their complete profiles on these sites, as well as all photos and videos posted on the sites.
The Court ruled that some SNS discovery was appropriate, as it:
is reasonable to expect severe emotional or mental injury to manifest itself in some social content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.
Thus the Court ordered the EEOC to produce all SNS profiles, postings, or messages for the two employees for the prior 3 years “that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” The Court also ordered the EEOC to produce all photos of the two claimants for the same time period, “because the context of the picture and the claimant's appearance may reveal the claimant's emotional or mental status.” In response to the EEOC’s concerns about “privacy,” the court ruled that these concerns could be addressed through a protective order.
Simply Storage is the most recent of only a handful of cases dealing with SNS discovery, and this is clearly a developing area of employment law. Thus, while the employer in Simply Storage sought SNS data relevant to the issue of emotional distress, employers should not hesitate to seek SNS data relevant to other issues raised by the claims or defenses in suit.
Richard S. Zackin is a Director in the Gibbons Employment Law Department.
Employers and their counsel should expect plaintiffs who seek damages for emotional distress in discrimination cases to utilize a recent New Jersey Law Division decision to challenge defense requests for Independent Medical Exams (IME) and for plaintiffs’ medical and psychological records. In the unpublished decision of McGhee v. Pathmark Stores, Inc. et al., the Law Division rejected the defendant employers’ application to conduct IMEs of the plaintiffs who were alleging severe and continuing pain and suffering over a 3-1/2 year period as a result of alleged race-based employment discrimination. The court concluded that “[e]motional distress is a recognized byproduct of discrimination” and, therefore, the plaintiffs did not put their mental state in issue -- a requirement for obtaining an IME under the New Jersey Court Rules -- when they pled severe pain and suffering.
In reaching its decision, the court essentially rejected all of the defendant employers’ arguments for allowing IMEs of each plaintiff in order to explore whether their alleged pain and suffering could have been caused by other stressors or underlying mental issues, and instead emphasized the following:
- The Findings, declarations section section of the New Jersey Law Against Discrimination (LAD), under which the McGhee plaintiffs brought their claims, expressly states: “because of discrimination, people suffer personal hardships, includ[ing] … physical and emotional stress; and in some cases severe emotional trauma, illness, homelessness or other irreparable harm resulting from the strain of employment controversies; … anxiety caused by lack of information, uncertainty, and resultant planning difficulty; career, education, family and social disruption; and adjustment problems, which particularly impact on those protected by this act. Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages. The Legislature intends that such damages be available to all persons protected by this act and that this act shall be liberally construed in combination with other protections available under the laws of this State.”