Recently in Civil Rights Category

U.S. Supreme Court Rules in Former Public Employee's Favor in Whistleblower Retaliation Case

September 30, 2014

Metal_whistle_Two_Short_Whistling.svg.pngA community college violated a program director's First Amendment rights, the U.S. Supreme Court ruled, when it fired him after he testified during an investigation of corruption in the program. Lane v. Franks, et al, 573 U.S. ___, No. 13-483, slip op. (Jun. 19, 2014). The court held that the plaintiff did not give up his rights under the First Amendment when he accepted public employment. It remanded the plaintiff's case against the community college to the trial court for further proceedings, but it affirmed the lower courts' findings that the college president, named as an individual defendant, had limited immunity for acts performed in an official capacity. Despite this, the case is an important victory for whistleblowers in the government.

The plaintiff, Edward Lane, was hired in 2006 as the Director of Community Intensive Training for Youth (CITY), a statewide program run through Central Alabama Community College (CACC) to assist underprivileged youth. CITY was facing serious financial problems at the time, according to the court's opinion, which prompted Lane to audit the program's expenses. He discovered about $177,000 paid to Democrat state representative Sue Schmitz between February 2003 and October 2006, with little record of any actual work done by her. When Schmitz reportedly refused Lane's demand to show up for work at CITY's office in Huntsville, Lane fired her. This allegedly drew threats of retaliation from Schmidt and the attention of the FBI.

In November 2006, Lane testified to a federal grand jury, which later indicted Schmidt on multiple counts of mail fraud and theft. Lane testified under subpoena at her trial in August 2008. When the jury failed to reach a verdict, prosecutors tried Schmidt again, and Lane testified again. Schmidt was convicted and sentenced to 30 months in prison. In January 2009, CACC President Steve Franks terminated 29 probationary CITY employees, including Lane, citing budget shortfalls. He then rescinded all but two of those terminations. Lane was one of the two who were not reinstated.

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Question of Whether Employers Can Fire Employees for Lawful Marijuana Use to Go Before Colorado Supreme Court

May 13, 2014

Discount_Medical_Marijuana_-_2.jpgAn employee who relied on medical marijuana for debilitating pain lost his job after failing a drug test, and his case has raised the difficult question of whether moves towards marijuana decriminalization have changed the legal standards in cases of termination for marijuana use. The employee alleged that the employer violated a statute prohibiting termination for "lawful activity" outside of work, but the Colorado Court of Appeals disagreed in Coats v. DISH Network, L.L.C., 303 P.3d 147 (Col. App. 2013). The state supreme court has agreed to hear the employee's appeal. The question involves both state and federal law, especially now that marijuana is at least partly legal in many states, but still illegal under federal law.

The plaintiff worked as a telephone operator for the satellite television service provider DISH Network. A spinal injury left him quadriplegic, and he obtained a prescription for medical marijuana to treat severe muscle spasms. Despite a good employment record, he was terminated in 2010 after failing a random drug test. He sued DISH, citing a Colorado statute that prohibits termination for "lawful activity off the premises of the employer during nonwork hours." C.R.S. § 24-34-402.5 (PDF file).

Both the trial court and the appellate court ruled that marijuana use outside of work, even with a legal prescription, was not "lawful activity" within the meaning of the state statute. Marijuana use of any kind is still prohibited by federal law. The U.S. Supreme Court held in Gonzales v. Raich, 545 U.S. 1 (2005) that state laws allowing marijuana use do not supersede federal laws prohibiting it. For an activity to be "lawful" in a wrongful termination case, the Colorado court held, "it must be permitted by, and not contrary to, both state and federal law." Coates, 303 P.3d at 151.

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New Jersey Law Protects Workers from Discrimination Prohibited by Proposed Federal Employment Non-Discrimination Act

December 5, 2013

file000174046297 morguefile username mxruben.jpgThe United States Senate has passed a bill designed to protect gay, lesbian, bisexual, and transgender workers across the country from discrimination. The Employment Non-Discrimination Act would prohibit employers with at least 15 workers from engaging in discrimination against an employee based upon his or her sexual orientation or gender identity. The bill also provides an exemption for religious institutions and the military. The measure was passed after two Independent, 10 Republican, and 52 Democratic Senators voted in favor of the bill. The proposed law will now move on to the House of Representatives for consideration.

Despite the bill's bipartisan success in the Senate, House Speaker John Boehner reportedly opposes the workplace rights bill. A spokesperson for House Majority Leader Eric Cantor, Rory Cooper, stated the proposed measure is not currently on the legislative schedule. President Obama stated it is his hope that the bill will be considered, passed, and sent to his desk for signature quickly. It is unclear, however, whether the measure will be ever considered by the House.

Although a number of state anti-discrimination laws are in place, there is currently no federal law that protects gay, lesbian, bisexual, and transgender workers in the U.S. from discrimination. The landmark Employment Non-Discrimination Act was first introduced to the Congress in 1994. Since then, the measure was re-introduced each year with varied success. In 1996, the proposed law failed in the Senate by only one vote. In 2007, the measure was passed by the House of Representatives but not the Senate.

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New York Lawmakers Propose Bill That Would Protect Interns From Harassment and Discrimination

December 3, 2013

file2931235531223 morgurfile username jdurham.jpgA bill that was recently introduced in the New York Legislature would provide unpaid interns with many of the same statutory protections that employees across the state currently enjoy. S05951 would make it unlawful for an employer to discriminate against interns who are members of a protected class. If the proposed measure is approved, interns would be legally protected from discrimination based upon race, creed, age, national origin, color, sexual orientation, disability, marital status, and other factors. It would also provide unpaid employees with both sexual harassment and whistleblower protections.

The bill was introduced by democratic lawmaker Liz Krueger of Manhattan. She stated a recent New York federal court ruling in which an intern's sexual harassment lawsuit was dismissed for lack of standing under the New York Human Rights Law demonstrates the need for the proposed legislation. In the past, some courts have also held that interns are not afforded the same protections as employees under federal civil rights laws. If the proposed measure is passed, New York will become the second state to provide unpaid interns with substantially similar legal protections as paid employees. Oregon enacted a so-called intern rights law in June.

Employers in New York, New Jersey, and throughout the nation are not legally required to treat each worker fairly. For example, in some situations an employer may engage in nepotism, favoritism, or simple "office politics." An employee who is treated poorly may only seek legal action where the discrimination was based on a legally protected status. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against a worker based on race, religion, color, sex, or national origin. Both the New York State Human Rights Law and the New York City Human Rights Law prohibit employment discrimination based on gender and other factors. New Jersey's Law Against Discrimination also makes it unlawful for an employer to discriminate in any job-related action on the basis of one or more of the statute's protected categories.

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Restaurant Settles Pregnancy Discrimination Lawsuit with EEOC

April 3, 2013

file0001087402931.jpgA restaurant has agreed to pay $20,000 to a former employee, along with other relief, to settle a pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). EEOC v. Reed Pierce's, No. 3:10-cv-00541, consent decree (S.D. Miss., Feb. 5, 2013). The lawsuit alleged that the restaurant unlawfully terminated the employee because she was pregnant. The restaurant continues to deny the EEOC's allegations, but agreed via a consent decree to pay damages, allow injunctive relief, modify its employment policies, and mandate training for its employees.

The complainant worked for Reed Pierce's, a restaurant in Byram, Mississippi, as a waitress. According to the amended complaint filed by the EEOC, the complainant notified supervisors that she was pregnant in November 2008. She reportedly had an allergic reaction to prenatal vitamins in February 2009, and asked to leave work as a result. The employer had allegedly granted similar requests by non-pregnant employees to leave work because of illness, but it denied her request. She made a similar request to take off from work for a doctor's appointment in March 2009, but was denied. The employer had allegedly granted requests to leave work for medical appointments for other employees. The complainant received notice of her termination from the employer on March 7, 2009, allegedly because "her pregnancy was interfering with her ability to do her job." Reed Pierce's, am. complaint at 3-4 (Oct. 18, 2010). She maintains that she was still able to perform her job duties, but received disparate treatment from her employer because of her pregnancy.

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Nurse Sues Hospital for Allegedly Reassigning Her Because of Her Race

March 5, 2013

Baby_nursery_room.jpgA nurse at a hospital in Flint, Michigan is suing her employer for alleged racial discrimination and civil rights violations. Battle v. Board of Hospital Managers of Hurley Medical Center, et al, No. 13-99763, complaint and jury demand (Mich. Cir. - Genesee Co., Jan. 21, 2013). She claims that the hospital reassigned an infant under her care to a different nurse after the infant's father demanded a nurse who was not African American. The lawsuit, which names the hospital and a supervisor as defendants, asserts causes of action for equal protection violations, violations of state anti-discrimination law, and intentional infliction of emotional distress.

According to her complaint, the plaintiff, Tonya Battle, began working at Hurley Medical Center in June 1988 as a registered nurse (RN) in the hospital's neonatal intensive care unit (NICU). She alleges that she was caring for an infant in the NICU on October 31, 2012, when the infant's father asked to speak to her supervisor. The charge nurse then spoke to the father, and Battle allegedly heard him tell the charge nurse that "he did not want any African Americans taking care of his baby." Complaint at 3. Battle also alleges that the man pulled up his sleeve to display a tattoo that she believed was a swastika. The charge nurse relayed the father's request to the nurse manager, Mary Osika, who allegedly told the charge nurse to reassign the infant.

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NYPD Officer's Widow Sues Supervisor, Saying Sexual Harassment Drove Him to Suicide

February 20, 2013

file3731334264016.jpgA supervisor's sexual advances drove a New York police officer to take his own life, according to a lawsuit filed by the officer's widow. The lawsuit names the City of New York, the New York City Police Department (NYPD), and the supervisor as defendants, and alleges that an ongoing pattern of sexual harassment violated the officer's civil rights.

Officer Matthew Schindler arrived at the 115th Precinct in Queens in March 2011, according to DNAinfo New York. He was assigned as a highway safety officer and reported to Sergeant Christine Hirtzel, also spelled in court documents and some media reports as "Hertzel." Hirtzel reportedly had direct control over Schindler's work schedule and duty assignments. She demanded that Schindler engage in sexual relations with her, according to the lawsuit. The lawsuit claims that Hirtzel made preferable shift assignments and other features of employment contingent on continued sexual contact, and that she threatened that Schindler "would suffer tangible detriment" if he refused her demands.

The continued demands allegedly caused Schindler to become depressed. On February 13, 2012, Schindler confronted Hirtzel, according to the complaint, to tell her to stop. He told her at that time that "he would kill himself over the 'guilt,'" according to the New York Post. She allegedly refused to end the relationship, and she allowed Schindler to leave the station. Hirtzel then contacted a precinct captain, who reportedly tried to call Schindler to "rectify his hostile work environment," and out of concern that he was suicidal. At around 4:30 p.m., Schindler committed suicide with his service weapon.

DNAinfo reported that Hirtzel told NYPD investigators that the affair was consensual. She claimed that he became distraught on February 13 after she tried to break off the relationship. He "stormed off," she alleged, and then she contacted the precinct captain to admit the affair. The captain then called Schindler, according to Hirtzel's report.

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Lawsuit Against New Jersey Furniture Store Alleges Sexual Orientation Discrimination

February 20, 2013

Exit_15X_sign_Secaucus.jpgA former employee of a Secaucus, New Jersey furniture store chain has alleging that management discriminated against her based on her sexual orientation and retaliated against her for complaining of a manager's discriminatory conduct. Perez v. Factory Direct of Secaucus, LLC, et al, No. 2:13-cv-00327, complaint (D.N.J., Jan. 17, 2013). The lawsuit currently claims violations of the Civil Rights Act of 1866 and the New Jersey Law Against Discrimination. An investigation of employment discrimination claims is still underway by the Equal Employment Opportunity Commission (EEOC), and the plaintiff has stated an intent to amend her complaint should the EEOC authorize her to do so.

The plaintiff, Isabel Perez, began working for the defendant, Factory Direct of Secaucus, which operates several Ashley Furniture HomeStore locations, on September 25, 2012. In her position as human resources director, she reported to the defendant Kathy Martin, the Director of People Services and Development, and defendant Eugene Chrinian, the CEO. Perez alleges that, during the interview process for the position with both Martin and Chrinian, both defendants questioned her extensively about her marital status and her religious beliefs. Perez, who is homosexual, preferred to keep such issues private, although she did discuss her religious beliefs briefly.

Perez alleges that Martin made frequent derogatory remarks in her presence about homosexuals, as well as discriminatory remarks about other employees based on their race, ethnicity, gender, or appearance. Perez claims that she brought up her concerns with Martin about Martin's derogatory comments to employees, as well as Martin's invocation of her religious beliefs in routine workplace issues. On at least one occasion, Martin allegedly told Perez "to be more understanding of the Company's 'culture.'" Complaint at 6. Martin began most meetings with prayers, Perez claims, including "unsolicited 'laying of the hands' on [Perez]." Id.

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New York Pharmacy Law Unlawfully Discriminates Based on National Origin and Alienage, According to Second Circuit

January 22, 2013

607445_15482499.jpgA group of pharmacists with nonimmigrant visas sued a number of New York state officials over a law limiting pharmacy licenses to U.S. citizens and legal permanent residents. The plaintiffs in Dandamundi, et al v. Tisch, et al, 686 F.3d 6 (2nd Cir. 2012) alleged that the law violated the U.S. Constitution's Equal Protection and Supremacy Clauses by discriminating based on "alienage." The Second Circuit affirmed the trial court's ruling in the plaintiffs' favor, finding that immigration status, other than a lack of documented status, is a "suspect class" and that the law failed strict scrutiny review. While this case did not directly involve allegations of discrimination by an employer, it may have an important benefit for nonimmigrant employees who face discrimination based on their immigration status or national origin.

The plaintiffs have H-1B worker visas or TN temporary worker status, giving them the right to work in the United States for a limited time in a specified job. Each plaintiff had legally worked in the United States for six or more years. The court stated that twenty-two of the thirty-two plaintiffs had applied to obtain green cards. The six-year maximum H-1B period had expired for sixteen of the plaintiffs, so they had obtained Employment Authorization Documents from immigration officials to allow them to remain in the U.S. and continue working during review of their applications.

All of the plaintiffs had New York pharmacy licenses issued through a waiver program in New York Education Law § 6805(1)(6). The law states that pharmacy licenses are only available to citizens and permanent residents, but the waiver extended the availability of licenses to people with certain nonimmigrant visas. The plaintiffs' pharmacy licenses became void when the waiver expired in 2009.

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New Jersey Passes Law Against Gender Discrimination

November 2, 2012

By signing into law new posting requirements aimed at combating pay and gender discrimination, Gov. Chris Christie advanced the fight for equal pay in the workforce.

Under the new law, companies that employ more than 50 people must post gender equality information in the workplace. This information must also be provided to employees at the time of hire, annually thereafter, and upon an employee's request. 1069414_gender_symbols.jpg

The law is scheduled to take effect Nov. 21 and employers will have 30 days to comply once the New Jersey Department of Labor issues notice.

However, our NJ employment lawyers understand there is much work left to be done. Employees, particularly women, must remain vigilant in making sure they are fairly compensated, particularly in relation to men holding similar positions within the company.

Christie vetoed a measure that would have increased the reporting requirements for public contractors in an effort to better determine and enforce compliance. Those doing business within New Jersey would have been required to report gender, job title, occupational category, race and total compensation to the New Jersey Department of Labor.

"When Gov. Chris Christie had a chance to sign legislation I authored to prevent gender wage discrimination in public contracts, he vetoed the bill, calling it 'senseless bureaucracy,'" wrote Assemblywoman Pamela Lampitt (D-Camden/Burlington), in the Star-Ledger. Lampitt is also chairwoman of the Assembly's Women and Children Committee.

Christie said it would have been burdensome and would have ultimately driven up the cost of public contracts paid for by tax dollars.

However, fact remain that women continue to fight for the equal pay owed them for equal work; this remains particularly true for jobs traditionally held by men. Lampitt notes a nationwide annual gender wage gap of $15.8 billion. In New Jersey, women earn just 79 cents for every dollar a man earns in the workforce.

Christie returned two New Jersey employment discrimination bills to the legislature for significant amendments.

The first would have eliminated the statute of limitations for bringing compensation discrimination claims. The Christie Administration contends that asserting into the bill limitations on the amount of backpay that can be recover would bring it into better agreement with the holdings of the New Jersey Supreme Court and the Lilly Ledbetter Fair Pay Act of 2009. The governor proposed a two-year limit.

The next measure would have prohibited retaliation against employees requesting pay information. The governor recommended the provisions be included in the New Jersey Law Against Discrimination rather than being made part of NJ's whistleblower law.

Establishing whistleblower protections is a key component that must be part of any real solution. The secrecy around pay in the workforce is one one the primary reasons why this form of silent discrimination is allowed to continue. Until employees who have reason to believe they are being paid unfairly are given access to compensation information, such discrepancies in pay will remain commonplace.

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New Jersey Employment Discrimination: State Police Refuse to Answer Questions about Promotional Policies

October 23, 2012

The American Civil Liberties Union has filed a discrimination lawsuit in New Jersey against State Police on behalf of the Latino Leadership Alliance. The group is seeking access and information regarding promotion policies, The Inquirer reported.

The chairman of the group, which describes itself as a coalition of community organizations, says he is a former police officer looking to ensure that there is no "disparate treatment of minorities," according to the lawsuit. 449966_handcuff.jpg

State police denied a state Open Public Records Request last month, saying the request was "improper and overbroad." The ACLU asserts police are permitted to keep individual employment records private but not general employment policies.

The ACLU is accusing state police of a culture of secrecy, saying it's the third public records request the agency has denied in recent months. For their part, state police are pointing to a recently adopted rule by the New Jersey Attorney General's Office, which permits police to withhold "standard operating procedures" from public view. The new regulation was first adopted in December 2011; the Attorney General's Office had previously said the rules would not be used to exempt general polices and procedures.

Yet it's been used to deny this request by the Latino Leadership Alliance, which wanted to know if promotion policies favored one ethnic or racial group over another.

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate in employment matters on the basis of race, color, religion, sex or national orientation. U.S. Equal Employment Opportunity Commission statistics from 1997 to 2011 show charges filed under Title VII alleging race discrimination in the workplace have risen from 762 in 1997 to nearly 3,000 last year. Race-based charges have increased from 29,199 in 1997 to more than 35,000 last year.

New Jersey's Law Against Discrimination (LAD) prohibits employment discrimination in any job-related action -- including hiring and promotion -- on the basis of any of the law's protected categories. Protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses.

Such discrimination is also forbidden in setting salary and benefits, making job assignments, in disciplinary actions and when reducing the workforce or otherwise conducting layoffs or terminations.

The law also protects employees from retaliation in the wake of making a good faith complaint about discrimination or harassment. Avenues for remedy include filing a complaint with the New Jersey Division of Civil Rights (which must be done with 180 days of the alleged act of discrimination) or pursuing a case through New Jersey Superior Court, typically with the assistance of an experienced New Jersey employment lawyer.

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Sexual Harassment Costs New Jersey Millions - Many Offenders Remain on the Job

October 10, 2012

Sexual harassment lawsuits, filed by NJ sexual harassment lawyers on behalf of state workers, against state agencies is costing New Jersey millions, yet many of the offenders remain on the job or have retired with lucrative pensions, according to an investigation by the Asbury Park Press.

A cadet at the state's corrections officer academy said she was subjected to offensive obscenities, inappropriate touching my male instructors, sex and gender discrimination and on-the-job retaliation in the wake of complaints to superiors. Fed up, she sued in 2005 and agreed to settle the case last year for $415,000. She now works as a senior corrections officer at New Jersey State Prison in Trenton. 455596_software_development_centre.jpg

Despite millions in settlements, most agencies refuse to discuss the issue -- citing either ongoing litigation or private personnel issues not subject to disclosure. However, the newspaper's investigation found many state employees or supervisors who have been named in the lawsuits either continue to work for the state or have retired with generous pensions. Many of the employee complaints allege the harassment has been occurring for years, according to the Park Press.

Whether in the private or public sector, failure to adequately deal with employees who violate sexual harassment policy ensures that the company remains exposed to such lawsuits and that employees remain exposed to unlawful conduct in the workplace.

The New Jersey Civil Service Commission reports nearly 1,000 state employees have filed sexual harassment lawsuits in the last 5 years. In recent years, 27 lawsuits have been settled for a total of $3.9 million. The average settlement is $145,000. In fact, the number of sexual harassment complaints in New Jersey has increased by 10 percent since 2006, even as the number of complaints nationwide has dropped by 5.5 percent.

The State of New Jersey has had a sexual harassment policy on the books since 1993 and all of the state's 74,000 employees are required to take training courses aimed at preventing sexual harassment in the workplace.

Sexual harassment which creates a hostile work environment is when an employee endures sexually abusive or offensive behavior and does not have to include physical contact. Quid pro quo sexual harassment is when an employer demands sexual favors as a condition of continued employment or advancement.

A total of 78 complaints involving state workers have been filed this year through Sept. 12.

Ironically, most of the settlements involved state agencies entrusted with enforcing the law. The State Department of Law and Public Safety was responsible for more than $1 million in settlements -- the highest dollar amount of any agency. Other agencies included state courts, the Juvenile Intensive Supervision Program and the Department of Corrections.

A spokesman for the state Attorney General said state agencies thoroughly investigate complaints and that disciplinary action can include reprimand, demotion, suspension or termination.


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New Jersey Public School District Pays to Settle Disability Discrimination and Retaliation Claims

July 24, 2012

wheelchair.jpgThe New Jersey Division on Civil Rights ("DCR") recently announced that a Bergen County school district has agreed to pay $90,000 to settle claims that it failed to reasonably accommodate a former employee's disability and then retaliated against her for her complaint of disability discrimination.

Maria Osnowitz was a teacher's aide for the West New York Board of Education. She suffers from knee injuries that impair her mobility. For the most part, she utilizes a motorized wheelchair or scooter to get around. When walking is necessary, she utilizes two canes.

In her first DCR Complaint, Ms. Osnowitz alleged that West New York Board of Education failed to reasonably accommodate her disability. Specifically, she alleged that, because of her disability, she requested to park her car in a covered parking area close to the entrance of the school where she worked, but that the school principal refused to allow her to do so. In addition, she alleged that the school repeatedly held meetings -- and required her attendance -- at locations that were not wheelchair-accessible. She further alleged that she requested that the meeting locations be changed, but that the school refused to do so.

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Too Sexy for this Job?... Gender Discrimination in the Workplace

July 9, 2012

thermometer.jpgAs New York employment lawyers, we know first-hand that employment discrimination comes in many shapes and sizes. But, is the hourglass one of them?

That question has recently been raised by Lauren Odes, a woman who filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging gender discrimination and religious discrimination against her employer, Native Intimates, in New York. Native Intimates is a lingerie wholesaler that allegedly fired Lauren Odes because she was "just too hot for this office."

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Bullying and The New Jersey Healthy Workplace Bill: Beyond Harassment and Hostile Work Environment

June 1, 2012

From the classroom to the break room, bullying is a term that has become ubiquitous over the past several years, and the need for legislation to protect employees from this particular type of behavior has become all the more evident. While current employment laws provide employees protection from discrimination, sexual harassment, other harassment, and a hostile work environment, there is no law that protects employees against the abuses that result from bullying. In order to address this gap in the employment law, the New Jersey Healthy Workplace Bill was submitted to the Senate Labor Committee earlier this year. The Bill goes a step further than the current employment discrimination laws by providing redress to employees who are the victims of abusive conduct, regardless of age, disability, gender, race, religion, sexual orientation, national origin, or any other protected class for that matter.

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