Articles Posted in Sexual Harassment

sexual harassmentIn New Jersey, sexual harassment in the workplace is considered a form of unlawful sex discrimination. The elements that a plaintiff must prove can vary depending on the circumstances of the case, and several defenses are available to defendants. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on a defendant’s use of the Faragher-Ellerth affirmative defense. A defendant can overcome liability under federal law if they can prove, in part, that a plaintiff unreasonably failed to report alleged sexual harassment. The plaintiff did not report alleged sexual harassment by her supervisor for four years. The court rejected the defendant’s claim that this was per se unreasonable under Faragher-Ellerth, citing the recent revelations of the #MeToo movement. Minarsky v. Susquehanna Cty., No. 17-2646, slip op. (3d Cir., Jul. 3, 2018).

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Numerous court decisions have applied this to sexual harassment. When an alleged harasser is a coworker of the complainant, or is otherwise not part of the company’s management, the employer is only liable if it was aware of the alleged harassment and failed to make reasonable efforts to remedy the situation.

The Faragher-Ellerth affirmative defense is partially based on this obligation to notify the employer and seek internal remedies. Since it is an affirmative defense, the burden of proof shifts to the defendant to prove two elements:
1. “[T]he employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); and
2. The complainant “failed to [use] reasonable care to take advantage of the employer’s safeguards and…to prevent harm that could have been avoided.” Faragher v. Boca Raton, 524 U.S. 775, 805 (1998).
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Jets cheerleadersProfessional football presents multiple legal issues related to employment. New Jersey officially has no team in the National Football League. That said, both of the New York-based NFL teams, the Giants and the Jets, have used stadiums in Northern New Jersey as their home fields since the early 1980s. Issues affecting players in the NFL, particularly the lasting effects of concussions and other injuries, have received media attention in recent years. NFL cheerleaders have also made a variety of complaints regarding wages, working conditions, and sexual harassment. In 2016, the New York Jets settled a New Jersey wage and hour lawsuit filed on behalf of a class of NFL cheerleaders. In 2018, a former cheerleader, who had recently been fired by another team, filed a sex discrimination complaint with the Equal Employment Opportunity Commission (EEOC).

While NFL players usually receive generous salaries under contracts with their teams, cheerleaders are often paid far less and do not have the protection of a defined term of employment. NFL cheerleaders have recently made several successful wage claims. A lawsuit filed in New Jersey in 2014, Krystal C. v. New York Jets LLC, alleged that the compensation received by members of the Jets’ cheerleading squad, when compared to the number of hours they were required to work, was often substantially less than minimum wage. Cheerleaders were paid $150 per game and $100 for appearances at team-sponsored events, but not for other required activities like practices and rehearsals. The parties entered into a settlement agreement in 2016, in which the team agreed to pay $325,000 to the class of plaintiffs.

Claims of sex discrimination involving NFL cheerleaders have not received as much attention in the court system as wage claims. Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination prohibit discrimination on the basis of sex. Cheerleading, as an occupation, presents some challenges in this area. Technical skill, including proficiency in dance, is not the only requirement for the job of cheerleader. To put it bluntly, cheerleaders are expected to meet a particular standard of physical attractiveness.

LGBT flag mapThe New Jersey Law Against Discrimination (NJLAD) is among the most expansive anti-discrimination statutes in the country, protecting employees from discrimination on the basis of multiple factors, including sexual orientation. Title VII of the federal Civil Rights Act of 1964 has far fewer expressly protected categories. Some federal courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, finding that the statute’s prohibition on sex discrimination encompasses sexual orientation as well. Other courts have ruled that sexual orientation discrimination is not discrimination on the basis of sex within Title VII’s meaning. The U.S. Supreme Court rejected a petition for certiorari in late 2017 that raised this question, Evans v. Georgia Regional Hospital. Since a conflict exists among lower court rulings on this issue, it is likely that the Supreme Court will accept a case at some point in the future.

The NJLAD states that an employer commits an unlawful employment practice by discriminating on the basis of “affectional or sexual orientation.” N.J. Rev. Stat. § 10:5-12(a). Title VII only mentions five factors:  “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The U.S. Supreme Court has clarified the legal meaning of “sex” under Title VII in several rulings. This includes recognition of sexual harassment and “sex stereotyping” as forms of unlawful sex discrimination.

Many Title VII lawsuits alleging sexual orientation discrimination have cited the “sex stereotyping” ruling, which held that “assuming or insisting that [employees] matched the stereotype associated with their [sex]” could be evidence of sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Another commonly cited decision ruled in favor of a male plaintiff alleging sexual harassment by male co-workers, reportedly based on their negative perceptions of the plaintiff’s sexual orientation. The court held that harassment does not need to “be motivated by sexual desire” to constitute sexual harassment, and therefore sex discrimination, under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998).

computerAnti-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.

Magirly [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/)], via OpenclipartA lawsuit filed earlier this year by a former hospital security supervisor alleges sexual harassment and pregnancy discrimination. Russo v. Robert Wood Johnson Health Sys., No. L-003497-15, complaint (N.J. Super. Ct., Middlesex Co., Jun. 16, 2015). New Jersey law specifically prohibits pregnancy discrimination, while federal law considers it a form of sex discrimination. Both federal and New Jersey law consider sexual harassment to be a type of unlawful sex discrimination, to the extent that it either directly affects the conditions of employment or creates a hostile work environment.

The plaintiff worked for the defendant hospital from 2008 until June 2015. Her most recent position was as security supervisor. She alleges that her supervisor subjected her to various forms of sexual harassment, including “sexually explicit text messages and emails,” for a period of about two years. The supervisor’s behavior towards her changed, she claims, when he learned that she was pregnant in June 2013. Instead of sexually explicit remarks, he allegedly began making “disparaging and unwarranted comments about her work performance.” The plaintiff specifically states that she had requested a promotion and raise in spring 2013, after she had taken on additional job duties with her supervisor’s alleged approval. She claims that the supervisor never followed up on her request after learning of her pregnancy.

This sort of conduct continued, the plaintiff claims, throughout her pregnancy. Before she went on maternity leave in January 2014, the supervisor allegedly told her that taking leave would put her job in jeopardy. She returned to work in July 2014, and claims that her supervisor and others began harassing her with regard to issues like breastfeeding. She states that she was initially allowed to use her private office to pump breast milk, but the hospital’s human resources (HR) director eventually told her that she had to use a lactation room in a different building. Because of its location, the plaintiff claims that the time needed to walk there from her office and back would not give her enough time to complete her job duties.

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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.Screen Shot 2014-11-03 at 11.21.35 AM

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.

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food-284418_640.jpgA 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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teamwork-294584_640.pngA former sales executive obtained a substantial verdict in May 2014 in a lawsuit against Microsoft, which accused the software company and a consultant of employment discrimination, sexual harassment, retaliation, and defamation. Mercieca v. Rummel, et al, No. D-1-GN-11-001030, third am. pet. (Tex. Dist. Ct., Travis Co., Apr. 12, 2013). He alleged a conspiracy to make false allegations of sexual harassment against him, which resulted in a hostile work environment and discriminatory treatment. The company then retaliated against him, eventually constructively terminating him, after he formally complained about the hostile work environment.

The plaintiff worked for Microsoft for 17 years in offices around the world. At the time of the events described in the lawsuit, he was a Senior Sales Executive in the company’s Austin, Texas office. He claimed that he had an excellent reputation within the company and had received multiple awards for sales performance, customer service, and service to the company.

In the fall of 2007, Lori Aulds was named Regional Sales Director, which made her the plaintiff’s direct supervisor. The two of them, according to the plaintiff, had a sexual relationship that ended several years prior to her promotion. She allegedly remarked about her current relationships to the plaintiff and tried to get him involved in disputes with her new significant other, despite his insistence that it made him uncomfortable.
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Home_Depot,_center_aisle,_Natick_MA.jpgA man’s lawsuit against his former employer alleges that the company created multiple pretexts ito justify firing him, and that the company discriminated against him because he is homosexual. Housh v. Home Depot USA, Inc., et al, No. 30-2013-00678843, complaint (Cal. Super. Ct., Orange Co., Oct. 1, 2013). The plaintiff further alleges that the company has sought out pretexts for firing other employees who, like the plaintiff, are older gay men. He claims that the company is acting out of concern for supposedly increased costs associated with such employees. The lawsuit asserts a total of 17 causes of action under common law and state statutes, including age discrimination, gender discrimination, wrongful termination, sexual harassment, and retaliation.

The plaintiff began working for the defendant, Home Depot, in 1987, and worked continuously for the company at several California locations for more than 25 years. He states in his complaint that management used a “Value Wheel” to protect employees from discrimination and other improper treatment. Id. at 5. He alleges that the “Value Wheel” and assorted representations made by management in connection with it constituted promises made to induce him and other employees to continue working for the company, including non-discrimination, merit-based pay and promotion, adequate benefits to prepare for retirement, and no retaliation for reporting “illegal and/or improper conduct.” Id. at 5-6. The company largely followed these promises, the plaintiff claims, until the 2008 recession.

The real estate recession that began in 2008, according to the plaintiff, had a serious impact on the company’s profits and stock price. The plaintiff alleges that the company “set a quota of employees that had to be terminated.” Id. at 8. Managers were allegedly instructed to target employees in three categories for termination: “Older/Higher Paid,” “Gay Males,” and “employees who disclosed improper or illegal conduct.” Id. The company’s management allegedly believed that benefits for gay male employees were more expensive “because of the HIV and AIDS virus.” Id. The plaintiff also claims that the company believed that the passage of California’s Domestic Partnership Equality Act in 2011, which requires employers to provide certain forms of coverage for domestic partners, would be financially damaging.
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AIG_New_York_building_at_dusk.jpgThe New York City Council unanimously passed a bill in late March 2014 amending the New York City Human Rights Law (NYCHRL) to extend the anti-discrimination provisions of the law to unpaid interns. A 2013 federal court case, in which an unpaid intern filed suit for sexual harassment and hostile work environment, inspired the bill. The court dismissed the intern’s claims because city and state law, it found, do not apply to interns. Wang v. Phoenix Satellite Television US, No. 1:13-cv-00218, mem. order (S.D.N.Y., Oct. 3, 2013).

The plaintiff in Wang was a graduate student in journalism at Syracuse University in December 2009 when she began working as an unpaid intern for the American subsidiary of Phoenix Media Group, a television news company based in Hong Kong. She viewed the internship as a training opportunity, with the possibility of a full-time job after she graduated. She reported to the Washington DC bureau chief, who also oversaw operations in New York.

While the bureau chief was in New York one night in January 2010, she and several employees met him at a restaurant. She alleged in her lawsuit that he asked her to stay after the meal to discuss job prospects, then invited her back to his hotel. He allegedly made sexual comments that made her uncomfortable, but she felt that she could not refuse his invitation to go to his room because he was her boss. Once they were alone, he allegedly threw his arms around her, groped her, and attempted to kiss her. She broke free of him and left the hotel. After that, she claims, he ceased to express any interest in hiring her.
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