Harassment

June 4, 2021

New Jersey Worker Shortages Offer a Reminder of Employees’ Rights Under Federal and State Law

As the COVID-19 pandemic shows signs of winding down, and New Jersey lifts many of the restrictions that have been in place for over a year, employers across the state report that they cannot find enough workers for their businesses. Some employers, rather predictably, blame expanded unemployment benefits. That might be one possible explanation, but it alone does not explain the reported worker shortage. Many of the industries reporting problems finding enough employees, to be blunt, do not have the best track records when it comes to fair wages, workplace safety, and other things that workers should be able to expect from their employers. Federal and New Jersey employment laws guarantee various protections for workers, and the fact that people are not hurrying to return to certain workplaces might serve as a reminder that maintaining these legal protections is an ongoing struggle.

Workers’ Rights Under Federal and New Jersey Law

Statutes at the state and federal level guarantee many New Jersey workers a minimum wage. They also protect workers’ right to a workplace free of discrimination, harassment, and unreasonable danger.

Minimum Wage

The Fair Labor Standards Act (FLSA) has set the federal minimum wage at $7.25 per hour since 2010. 29 U.S.C. § 206(a)(1)(C). For tipped employees, which include many restaurant workers, employers must pay a base wage of $2.13 per hour. Id. at § 203(m)(2), 29 C.F.R. § 531.59.
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December 6, 2019

New Jersey State Employee Awarded $987,000 in Race Discrimination Lawsuit

by Resnick Law Group, P.C.

Workplace harassment on the basis of a protected category is considered unlawful employment discrimination under New Jersey law and throughout the country. Most people are familiar with how sexual harassment violates New Jersey employment discrimination laws, but it also applies to harassment based on race, religion, and other factors. The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., prohibits discrimination and harassment on numerous bases, as well as retaliation for opposing or reporting alleged unlawful practices. The Conscientious Employee Protection Act (CEPA), id. at § 34:19-1 et seq., protects the rights of whistleblowers who report suspected unlawful activity by their employers. A state employee filed suit in 2013 for race harassment and retaliation under the NJLAD and CEPA. In April 2019, a jury in Mercer County, New Jersey awarded him over $987,000 in damages.

The NJLAD prohibits employment discrimination on the basis of race and multiple other factors. See id. at § 10:5-12(a). This includes a wide range of adverse employment actions. Firing or refusing to hire a person because of their race is perhaps the most obvious sort of discriminatory act in violation of the NJLAD, but workplace discrimination takes far more forms than that. Pervasive and unwelcome actions that create a hostile work environment based on race also support an NJLAD claim.

Employers who “take reprisals against any person” who either opposes or reports alleged violations of the NJLAD commit a separate violation of the NJLAD, commonly known as retaliation. Id. at § 10:5-12(d). CEPA provides similar protections for employees who “[d]isclose[], or threaten[] to disclose” alleged legal violations by an employer, either to a supervisor or a government body. Id. at § 34:19-3(a). This may include reporting NJLAD violations.

December 14, 2018

Major Technology Companies No Longer Require Arbitration in Sexual Harassment Cases

by Resnick Law Group, P.C.

Litigation is perhaps the most well-known method of dealing with legal disputes, but it is not the only method. Our legal system increasingly encourages would-be litigants to use alternative dispute resolution (ADR) before, or instead of, going to court. Many contracts now include clauses requiring the parties to submit disputes to arbitration. While arbitration may offer some benefits over the court system, it is subject to numerous criticisms in disputes involving a significant imbalance of power and resources. If you have questions of this nature, contact a New Jersey employment attorney without delay.

Court decisions interpreting New Jersey’s employment antidiscrimination statute have invalidated provisions of arbitration agreements that infringe on statutory rights. Federal law, on the other hand, favors arbitration over litigation in most cases. Several major technology companies, employing thousands of people, recently dropped mandatory arbitration of sexual harassment claims, which may allow more claims to see the light of day.

Statutes like Title VII of the federal Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination in employment on the basis of sex, and include sexual harassment as a form of unlawful sex discrimination. In order to assert a claim under these statutes, an individual must first file a complaint with a state or federal agency like the Equal Employment Opportunity Commission (EEOC). The agency will investigate the claim, and if it determines the claim to have merit, it will issue a “right to sue” letter. This allows the complainant to file suit in state or federal court. Arbitration clauses in employment contracts prevent employees from accessing this process.

December 7, 2018

Jury Awards $6 Million to Former Employee in National Origin, Age Discrimination Case

by Resnick Law Group, P.C.

A federal jury recently found in favor of a former employee claiming national origin and age discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and state law. Middlebrooks v. Teva Pharmaceuticals USA, Inc., et al, No. 2:17-cv-00412, 2nd am. complaint (E.D. Pa., Apr. 25, 2017). The case is notable in part because the plaintiff alleged that the defendants, an Israeli pharmaceutical company and its American subsidiary, discriminated against him because of his “American origin.” Id. at 1. If you have questions of this nature, contact a New Jersey employment discrimination attorney.

In early 2018, the court allowed the plaintiff’s claims against the Israeli parent company to proceed under a theory of joint-employer liability. The case went to trial against both defendants in November 2018. The jury awarded the plaintiff over $6 million in damages.

Title VII prohibits discrimination on the basis of national origin, among other factors, and retaliation for reporting alleged unlawful acts. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). The ADEA prohibits discrimination on the basis of age against individuals who are at least forty years old. 29 U.S.C. §§ 623(a)(1), 631(a). Unlawful discrimination may include harassment on the basis of a protected category, particularly when it creates a hostile work environment that prevents an individual from performing their job duties effectively.

January 12, 2018

Entrepreneurs in New Jersey and Around the Country Push Back Against Sex Discrimination, Sexual Harassment

by Resnick Law Group, P.C.

Anti-discrimination laws in New Jersey, at the federal level, and in other states around the country prohibit discrimination in employment based on numerous factors, including sex. These prohibitions on sex discrimination include sexual harassment. The past few months have seen a possibly unprecedented series of allegations and revelations about sexual harassment in the entertainment industry and in Washington, D.C. Even before that, however, people involved in technology startups in California and elsewhere were coming forward with allegations of sex discrimination and sexual harassment. Many of these involved female entrepreneurs and male investors. These cases often present a legal quandary for people claiming sexual harassment, since the types of employer-employee relationships covered by anti-discrimination statutes are not always present in the entrepreneurship model. New Jersey is also home to many startup businesses, making this an important issue for New Jersey sexual harassment claimants as well.

The New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 prohibit sexual harassment as a form of sex discrimination. Sexual harassment consists of a range of unwelcome behaviors of a sexual nature, including remarks, jokes, overtures or advances, direct requests for sexual contact, and unwanted touching or assault. This type of conduct constitutes unlawful sex discrimination when an employer makes sexual activity a condition of employment, or when the offensive conduct creates a hostile working environment for an employee. Employers are often held vicariously liable for sexual harassment by a supervisor, manager, executive, or director against someone who works in a subordinate position. If the alleged harasser is a co-worker, the employer may be liable if they are aware of the harassment but fail to take reasonable measures to address it.

Startup companies are, broadly speaking, businesses in the very early stages of development that offer some sort of novel product or service. No distinct definition of “startup” exists, but perhaps a key feature of a startup is that its operating expenses exceed its income—if any income exists—and its business model is at least partly unproven. Many startups therefore rely on investors to fund initial development and growth. Venture capitalists (VCs) are in the business of investing in startups, providing money for the company and, often, mentoring for the entrepreneurs. Many of the recent allegations of sex discrimination and sexual harassment originate in interactions between entrepreneurs and VCs.

September 15, 2017

Third Circuit Rules that a Single Incident Can Sustain a Workplace Harassment Claim

by Resnick Law Group, P.C.

Federal law prohibits discrimination by employers on the basis of numerous factors. Common examples of unlawful discrimination include refusal to hire, termination, or harassment in the workplace because of a claimant’s race, sex, religion, etc. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey employment discrimination claims under federal law, recently ruled on the question of how much harassment a plaintiff must allege to maintain a claim for workplace harassment based on race. The defendant argued that a plaintiff must allege an ongoing pattern or multiple instances of harassment. The court, citing the plain language of precedent decisions, held that a single incident of race-based harassment can be sufficient to sustain a claim. Castleberry v. STI Group, No. 16-3131, slip op. (3rd Cir., Jul. 14, 2017).

Title VII of the Civil Rights Act of 1964 is probably the most well-known federal statute dealing with race discrimination in employment, but it is not the only one. The plaintiffs in Castleberry brought their claims under 42 U.S.C. § 1981 rather than Title VII. This statute addresses equal rights “to make and enforce contracts” and engage in certain other activities. It was originally enacted as part of the Civil Rights Act of 1866, and Congress amended it in the Civil Rights Act of 1991. This law added subsection (b), which clarifies that the contractual rights it protects include employment claims like wrongful termination.

The Castleberry lawsuit alleges workplace harassment on the basis of race in the form of a hostile work environment. The Third Circuit has defined a five-part test for establishing a hostile work environment based on race: the plaintiff experienced (1) intentional discrimination based on race (2) that was “severe or pervasive,” (3) that “detrimentally affected the plaintiff,” (4) that would have a comparable effect on “a reasonable person” in a similar situation, and (5) that occurred in a situation in which respondeat superior liability would apply. Castleberry, slip op. at 5, quoting Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). The Third Circuit’s analysis in Castleberry focused on the “severe or pervasive” element.

January 27, 2017

Sex Discrimination Lawsuit Describes “Boys’ Club” Atmosphere, Alleges Attempted Securities Fraud in Major Bank

by Resnick Law Group, P.C.

Federal and state employment statutes protect employees from discrimination on the basis of sex and other protected traits, and they also prohibit retaliation for reporting alleged violations of these laws. Protections against retaliation also extend to workers who act as “whistleblowers” by reporting suspected financial crimes. A lawsuit in New York City combines allegations of sex discrimination with whistleblower retaliation claims under two major financial laws. The plaintiff’s complaint describes an alleged culture of unequal treatment based on gender, including unequal pay and job responsibilities. She further alleges that a supervisor harassed her to obtain information to use in insider trading, and the defendant terminated her in retaliation for reporting the matter. The lawsuit asserts causes of action under state and federal anti-discrimination laws and federal financial statutes.

The plaintiff asserts sex discrimination, harassment, and retaliation claims under a New York state law, which is similar to the New Jersey Law Against Discrimination. N.J. Rev. Stat. § 10:5-12(a). She is also alleging gender-based pay discrimination under the Equal Pay Act of 1963, 29 U.S.C. § 206(d). She has reportedly filed a claim with the Equal Employment Opportunity Commission, and she will add claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), once the administrative process is complete.

The plaintiff is also claiming violations of the whistleblower protection provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 15 U.S.C. § 78u- 6(h)(1); and the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. Employers that are subject to these laws cannot terminate or otherwise retaliate against an employee for reporting alleged financial fraud or impropriety, for participating in an investigation of alleged financial impropriety, or for disclosing information to a government agency in the manner required by law. Both statutes allow private causes of action by aggrieved employees.

November 25, 2015

Pop Singer Sues Producer for Sexual Harassment, Other Claims; Producer Counter-Sues for Extortion

by Resnick Law Group, P.C.

The field of employment law extends beyond claims under statutes like the Fair Labor Standards Act or the New Jersey Wage and Hour Law. Employment law includes almost any legal issue involving an employer-employee relationship or almost any similar relationship. A pair of lawsuits between a pop singer and her producer demonstrate how “employment law” can encompass a wide range of issues. No express employer-employee relationship exists in the cases, but the singer’s lawsuit alleges that the producer has made it essentially impossible for her to work. The producer responded by filing his own lawsuit, alleging breach of contract and other claims.

The singer, who uses the stage name “Kesha” and previously used the name “Ke$ha,” has built a rather extensive body of work as a singer, songwriter, and performer. She released her first full-length album in 2010, but her career has been less active in recent years. She attributes that apparent slowdown in her career to a conflict with her producer, who does business under the name “Dr. Luke.”

In her complaint, Kesha states that she first signed a contract with Dr. Luke in 2005, when she was 18 years old. She alleges that he “has sexually, physically, verbally, and emotionally abused” her for the past decade, “to the point where [she] nearly lost her life.” Sebert v. Gottwald, et al., 1st am. complaint at 2 (Cal. Super. Ct., L.A. Co., Jun. 8, 2015). The allegations include “sexual advances” and “forc[ing her] to take drugs and alcohol in order to take advantage of her sexually while she was intoxicated.” Id. at 7. The “abuse and control” allegedly continued after she got her “big break” in 2010. Id. at 8. She also alleges numerous acts by the producer that have hindered her career in recent years, such as by preventing her from releasing albums or touring.

June 10, 2015

Discrimination, Harassment Lawsuit Targets the Tech Industry

by Resnick Law Group, P.C.

A former program manager for the internet company Facebook has filed a lawsuit against the company in state court in California, alleging sexual harassment and discrimination based on race and gender. Hong v. Facebook, Inc., et al, No. CIV-532943, complaint (Cal. Super. Ct., San Mateo Co., Mar. 16, 2015). The case alleges numerous acts of conduct towards the plaintiff that, when taken in isolation, might seem minor, but that add up over time to constitute significant disparate treatment based on her gender and her national origin. The laws at the state and federal level are clear that employers may not discriminate in promotions, job duties, and other features of employment based on these categories. These types of claims, unfortunately, can be difficult to prove. Another recent lawsuit against a Silicon Valley venture capital firm made similar allegations but resulted in a jury verdict for the defendant. The current case makes a wide range of allegations, however, that indicate overtly discriminatory treatment towards the plaintiff.

According to her complaint, the defendant hired the plaintiff in June 2010 for the position of program manager. It transferred her to “technology partner” in October 2012. She claims that she performed her job duties well throughout her time with the company, pointing to “satisfactory performance evaluations” and regular raises as evidence. Hong, complaint at 2. Prior to the events immediately preceding her termination, she states that she “received no significant criticism of her work.” Id. She was allegedly terminated on October 17, 2013.

The plaintiff alleges that multiple employees of the defendant, including her supervisor, who is named individually as a defendant, and others identified in the complaint as “Does One through Thirty,” discriminated against her based on gender. This allegedly included comments belittling her work and admonishment for “exercis[ing] her right under company policy to take time off to visit her child at school.” Id. at 3. She also claims that she was given assignments that no male co-workers were expected to do, such as organizing office parties and serving drinks. She makes a direct allegation that the company hired a “less qualified, less experienced male” to replace her. Id.
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April 2, 2015

Lawsuit Claims Gender Identity Discrimination under Title VII

by Resnick Law Group, P.C.

A transgender woman’s sex discrimination lawsuit examined the extent of protection, if any, offered for gender identity by federal anti-discrimination law. Jamal v. Saks & Company, No. 4:14-cv-02782, complaint (S.D. Tex., Sep. 30, 2014). Issues relating to transgender persons, generally defined as someone who identifies with a different gender than the one they were assigned at birth, have gained considerable prominence in recent years, particularly with regard to their rights against workplace and public discrimination. New Jersey and other states prohibit employment discrimination based on “gender identity or expression” N.J. Rev. Stat. § 10:5-12(a), but federal anti-discrimination laws do not expressly mention gender identity.

The defendant operates the Saks Fifth Avenue chain of department stores. The plaintiff, a transgender woman, first worked at an outlet store in suburban Houston, Texas until she was transferred to its “full-line store” in Houston. Jamal, complaint at 3. She alleges that the defendant routinely “misgendered” her by referring to her with male pronouns and other indicators, and denying permission to use the women’s restroom. The store manager allegedly requested that she “change her appearance to a more masculine one.” Id. at 5. Managers and fellow employees, the plaintiff claims, routinely harassed and belittled her on the basis of her gender identity. She complained to the EEOC, and was fired ten days later.

The plaintiff sued for wrongful termination, hostile work environment, harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The defendant filed a Rule 12(b)(6) motion to dismiss in December 2014 that referred to the plaintiff as “he,” and used the term “[sic]” when quoting portions of the plaintiff’s complaint that used female pronouns. This term is used to indicate that quoted text includes errors or inaccuracies found in the original. The defendant later withdrew its motion, and the parties stipulated a dismissal of the lawsuit in March 2015. The questions it raised still remain, though.
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