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Category Archives: Discrimination

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NJ Supreme Court Grants Leave to Appeal to Employee After NJ Appellate Division Permits Indictment Arising From Her Theft of Employer Documents to Prove LAD and CEPA Claims

Posted in Discrimination
The New Jersey Supreme Court recently granted defendant Ivonne Saavedra’s leave to appeal the Appellate Division’s decision in State v. Saavedra, the subject of a previous post, affirming the trial court’s denial of her motion to dismiss an indictment charging her with official misconduct for stealing confidential documents from her employer to support her claims under … Continue Reading

NJ Appellate Division Permits Criminal Indictment Against Employee Who Stole Employer’s Documents in Connection with LAD and CEPA Claims

Posted in Discrimination
The Superior Court of New Jersey, Appellate Division, has held that a public sector employee can be criminally indicted for stealing employer documents to support her claims under the New Jersey Conscientious Employee Protection Act (CEPA) and New Jersey Law Against Discrimination (LAD). In State of New Jersey v. Saavedra, the Appellate Division found, in a 2-1 decision, that a criminal judge is not required to perform a Quinlan analysis when deciding a motion to dismiss an indictment charging the employee with second-degree official misconduct and third-degree theft of public documents. Instead, the State merely must introduce evidence to support a prima facie case that the defendant committed the crime. In dissent, Judge Simonelli disagreed with the majority, concluding that the doctrine of fundamental fairness should be expanded to preclude criminal prosecution of employees for theft or official misconduct for taking confidential employer documents while engaged in protected activity pursuant to the whistleblower and anti-discrimination laws… Continue Reading

New Jersey Gender Equity Notice Requirement

Posted in Discrimination
Beginning on January 6, 2014, New Jersey employers with 50 or more employees (whether those employees work inside or outside of New Jersey) are required to post the new mandatory gender equity notice which was released by the New Jersey Department of Labor and Workforce Development (NJDLWD) in December 2013. The notice implements a September 2012 amendment to the New Jersey Equal Pay Act. It informs employees of their right to be free of gender inequity or bias in pay, compensation, benefits, or other terms and conditions of employment under both federal and New Jersey law. Employers are required to conspicuously post the gender equity notice in a place accessible to all employees. In the event that a covered employer has an internet site or intranet site for exclusive use by its employees and to which all employees have access, posting of the gender equity notice on the covered employer's internet site or intranet site will satisfy the conspicuous posting requirement… Continue Reading

NJLAD Amended to Target Potential Pay Discrimination

Posted in Discrimination, Policies/Handbooks
On August 28, 2013, New Jersey Governor Christie signed Assembly Bill No. 2648, amending the New Jersey Law Against Discrimination ("NJLAD") to prohibit employers from retaliating against employees who disclose to or request information from other employees or former employees regarding job title, occupational category, pay (including benefits), gender, race, ethnicity, military status and national origin for the purpose of investigating or taking legal action against potential pay discrimination. The amendment, effective immediately, does not require employees or former employees to divulge this information… Continue Reading

New Jersey Supreme Court Provides Clarification on the Standards of Proof for LAD and CEPA Claims

Posted in Discrimination, Whistleblower
In a decision clarifying the standards of proof for retaliation claims arising under the Law Against Discrimination ("LAD") and the Conscientious Employee Protection Act ("CEPA"), the New Jersey Supreme Court held in Battaglia v. UPS that, for purposes of an LAD retaliation claim, a plaintiff need only demonstrate a good faith belief that the complained-of conduct violates the LAD, and need not identify any actual victim of discrimination. As to the fraud-based CEPA claim, the Court held that the plaintiff must have "reasonably believed" that the complained-of activity was fraudulent. Finally, addressing the plaintiff's emotional distress damages, the Court ruled that claims for future emotional distress must be supported by an expert opinion regarding permanency… Continue Reading

Supreme Court Requires “But-For” Causation for Title VII Retaliation Claims

Posted in Discrimination
In a victory for employers, the U.S. Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar, that employees asserting retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII") must establish that the adverse employment action at issue would not have occurred "but for" an improper motive on the employer's part. This "but for" causation standard, as opposed to the more plaintiff-friendly "motivating factor" causation standard used in Title VII discrimination claims, gives employers a better chance at defeating Title VII retaliation claims, particularly at the summary judgment stage… Continue Reading

The U.S. Supreme Court Decides Who is a “Supervisor” for Title VII Purposes

Posted in Discrimination
Yesterday, the U.S. Supreme Court decided Vance v. Ball State University, one of the most-anticipated decisions of the Court's 2012 Term. The Vance case concerns who is considered a "supervisor" for purposes of establishing an employer's liability for hostile work environment harassment under Title VII of the Civil Rights Act of 1964. In a 5 to 4 decision, the Court affirmed the decision of the Court of Appeals for the Seventh Circuit, from which the case arose, and other lower courts which had defined "supervisor" to include only those individuals who possess the authority to fire, demote, promote, transfer, discipline or take some other tangible action against a harassment victim. The Court rejected the definition of "supervisor" proposed by the federal government, appearing as amicus curiae, and found in the EEOC's Enforcement Guidelines, which links "supervisor" status to the ability to exercise direction over the victim's daily work… Continue Reading

Reminder to NYC Employers: Unemployed in Protected Class Beginning June 11, 2013

Posted in Discrimination
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… Continue Reading

Mitchell Boyarsky to Speak at Upcoming NJBIA Employment Seminar

Posted in Discrimination
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… Continue Reading

What to Expect from the EEOC in 2013

Posted in Discrimination
At the Gibbons Second Annual Employment & Labor Law Conference last month, 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… Continue Reading

New York City Prohibits Discrimination Against the Unemployed

Posted in Discrimination
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… Continue Reading

Gibbons Director, Susan Nardone, to Speak at Upcoming NAWL Labor & Employment Webinar

Posted in Discrimination
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… Continue Reading

New Requirements for NJ Employers and for Employers Conducting Business in Newark, NJ

Posted in Discrimination
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… Continue Reading

Employee Participation in Internal Investigation Not Covered by Anti-Retaliation Provision of Title VII, According to Second Circuit

Posted in Discrimination
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… Continue Reading

The EEOC Holds that Title VII Protects Transgender Employees

Posted in Discrimination
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… Continue Reading

The New EEOC Guidance Regarding Criminal Background Checks

Posted in Discrimination
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… Continue Reading

Quinlan v. Curtiss-Wright: Plaintiff-Employee Bears Burden of Proving Front Pay Damages

Posted in Discrimination
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… Continue Reading

EEOC Publishes New ADEA Regulations for the “Reasonable Factors Other Than Age” Defense

Posted in Discrimination
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… Continue Reading

Third Circuit Finds That Failing to Produce Original Documents May Constitute Sanctionable Spoliation

Posted in Discrimination, E-Discovery
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… Continue Reading

New Jersey Framework for Analyzing Attorneys’ Fee Awards, Including Contingency Fee Enhancements, Unchanged

Posted in Disability, Discrimination
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… Continue Reading