A disability discrimination case from Union County shows an example of a situation where the worker’s online information was discoverable.

N.D., the worker, was a staff attorney with a nonprofit that performed legal advocacy for people with disabilities. The staff attorney was herself a person with disabilities, as she had received diagnoses of lupus and cancer. In January 2020, the organization fired the staff attorney, so she sued, alleging that the termination was an act of impermissible disability discrimination in violation of the New Jersey Law Against Discrimination.

The staff attorney, in her complaint, alleged that her employer’s discriminatory conduct had harmed her in numerous ways, including “economic loss, physical and emotional distress, anxiety, pain and suffering, humiliation, [and] career, family and social disruption.”

Many of these are typical injuries to suffer – and therefore to claim in an NJLAD complaint – if one has been wrongfully terminated for discriminatory reasons. The staff attorney’s inclusion of emotional harm, however, played a key role in how the employer responded.

The employer asked for a court order compelling the staff attorney to disclose “all her social media content ‘concerning any emotion, sentiment, or feeling of [p]laintiff, as well as events that could reasonably be expected to evoke an emotion, sentiment, or feeling.’” The trial judge narrowed the scope somewhat (such as clarifying that the staff attorney need not disclose posts wishing others a “Happy Birthday” or disclose posts where she discussed her emotions and feelings in relation to current political events,) but ultimately green-lit the employer’s discovery request.

The appeals court acknowledged that the staff attorney had a privacy interest in her private social media posts but ultimately concluded that this interest was outweighed by other competing interests.

A worker’s privacy interest in her private social media content is not absolute. Both New Jersey law (the Social Media Privacy Law) and federal law (the Stored Communications Act) discuss individuals’ privacy rights regarding social media content, but neither says that social media content is totally immune from discovery as part of a civil lawsuit.

In some circumstances (a discrimination case alleging emotional harm being one of them,) the court must balance that privacy interest against the employer’s interest in pursuing potentially relevant evidence upon which to build its defense.

New Jersey’s Rules Typically Come Down in Favor of Disclosure

The appeals court, in upholding the trial judge’s discovery order, pointed out that New Jersey’s discovery rules are “liberal” in the sense that they generally favor resolving disputes in favor of, not against, disclosure. The appeals court declared that the information the employer sought was relevant to the issues in the staff attorney’s lawsuit, expressing its agreement with a federal District Court in Indiana that had written in 2010 that it was “reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress.”

In siding with the trial judge’s order, the appeals court explicitly rejected an argument that the law should view a worker’s private social media content as analogous to personal financial records and grant them heightened protection against disclosure in civil discovery.

This outcome is useful to workers in providing an advanced warning about what they may face as part of their discrimination case. As a worker, you should not be frightened or intimidated by this outcome. Just because your Facebook or other social media posts do not depict someone thrust into the depths of despair after your wrongful termination, that does not mean that you cannot readily prove through other means that you suffered clear emotional harm and deserve compensation.

Whatever the bases for compensation in your discrimination case – be they lost wages, physical injury, emotional damage, or all of the above – the right legal team can help you make the most of your case. The knowledgeable New Jersey disability discrimination attorneys at Phillips & Associates are dedicated to representing New Jersey workers who have been the targets of illegal discrimination, and to helping them seek justice for the harm they’ve endured. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post The New Jersey Appellate Division Addresses the Discoverability of a Worker’s Social Media Posts as Part of Her Discrimination Case appeared first on New Jersey Employment Lawyer Blog.

A recent federal discrimination and retaliation case is a good illustration of two things. One is the retaliation-related issue discussed above. The other is a reminder of the evidentiary elements it takes to succeed on a race discrimination claim.

The plaintiff, F.S., was a Black woman and a managerial employee for the state Superior Court in Camden, having started there in 2013. Problems allegedly arose quickly and the manager filed a discrimination suit under the Law Against Discrimination in 2014.

Two years later, the manager sued again — this time alleging federal Title VII violations in the form of race discrimination and retaliation.

The Essential Details of a Viable Race Discrimination Claim

The bad news for the manager was that the courts deemed her claim for race discrimination to be inadequate. In any race discrimination scenario, it’s critical to connect the bad acts you asserted to race-based animus. If your complaint generally alleges bad acts that are potentially consistent with discriminatory motives, but also potentially consistent with nondiscriminatory motives, then you don’t have enough.

That was a problem in this employee’s pleadings. The appeals court noted that, while the manager “alleged that the Supervisors disciplined her and acted in ways that caused her to feel insulted and embarrassed,” she never took the next step of alleging that the supervisors’ mistreatment of her occurred because of her race. Without that crucial element, the employee’s race discrimination claim couldn’t survive.

Additionally, if your race discrimination claim asserts that your employer treated you differently than other colleagues of different races, you have to give the court some specifics. (In other words, you can’t just say generally that your supervisors treated you, a Black person, less favorably than your White coworkers.)

Your pleading needs certain details, such as a colleague (or colleagues) who represented what the law calls a “comparator.” A comparator, in this context, is an employee who is similarly situated to you in all relevant ways except that they are not a member of the protected class that serves as the foundation of your discrimination claim. (For example, if you’re a woman advancing a sex discrimination case, you need comparators who are similarly situated to you except that they are not women.)

You also need to allege ways in which the employer treated your comparator more favorably or treated you comparatively less favorably.

F.S.’s case fell short on these fronts. The appeals court pointed out that she “failed to identify relevant comparators, failed to allege differential treatment for the same conduct, or failed to show that her treatment was less favorable than that of other employees.”

Protected Activities, Causation, Temporal Proximity, and Retaliation

The good news for the manager was the appeals court reached a different conclusion regarding her retaliation claim. When it comes to retaliation claims, you have to allege that you engaged in some form of “protected activity.” This can be anything from speaking out internally against improper conduct to testifying as part of a colleague’s harassment case to helping a coworker fill out discrimination claim forms to launching your own discrimination complaint, among other things. For your discrimination complaint to be the required “protected activity” in a potentially successful retaliation claim, the discrimination claim need not have been successful. You need only have brought it in good faith.

As part of the manager’s 2014 discrimination case, the trial judge issued a mid-April 2015 ruling permitting F.S. “to produce documentary evidence of her Supervisors’ discrimination.” By April 21, a supervisor had filed a complaint against her and, on May 7, the employer suspended her without pay.

That, the appeals court decided, was enough. One of the more common ways to establish that your protected activity caused the retaliatory action you alleged is to link the two together in terms of closeness of time, or what the law calls “temporal proximity.” In the manager’s case, the supervisor’s launching of an internal complaint against her within a matter of days (and the employer’s imposition of an unpaid suspension in less than four weeks) of the court’s evidentiary ruling was a sufficiently small window of time to satisfy the causation element.

Speaking out in good faith against conduct you believe to be discriminatory or harassing shouldn’t come at a cost to your career, even if the conduct you opposed ultimately wasn’t judged to be a violation of the law. If your employer metes out that kind of improper punishment, the experienced New Jersey employment retaliation attorneys at Phillips & Associates are here to help. Our team has the knowledge and the skills to provide you and your case with the effective representation you deserve. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post Advancing a Viable Retaliation Claim in New Jersey, Even Without Successfully Proving Discrimination or Harassment appeared first on New Jersey Employment Lawyer Blog.

Here’s an example of what we mean. J.C. was a Black man who worked for a steel fabricator in southeast Pennsylvania. The employee suffered from herniated discs and arthritis in his back, a disability that caused him to pursue leave from work under the Family Medical Leave Act.

The employer fired the man in the summer of 2019. It claimed that it had found proof on his cell phone that he’d been soliciting sex workers while on company time and company property. The fired employee contended that the company fired him in retaliation for his complaints of race discrimination and disability discrimination, as well as using FMLA leave.

In a case like J.C.’s, you have to go through a three-step process. First, you have to establish that you have what the law calls a “prima facie” case of retaliation. That means having a sufficient showing that you engaged in “protected activity,” that your employer followed up with an adverse action, and that your protected activity caused the adverse action.

Once you’ve done that, the burden then shifts to your employer to present a legitimate, non-retaliatory reason for the adverse employment action. If the employer clears that hurdle, then the burden moves back to you again. This time, you must show that the legitimate reason the employer presented was merely a pretext for the true (illegal) motivation for the adverse action.

Retaliatory Animus Fueling an Employer’s Investigation

J.C., in seeking to establish pretext, attacked his employer’s motivation for the investigation and search of his cell phone. The trial court ruled in favor of the employer, concluding that the employer’s reasons for engaging in the investigation and search were irrelevant to determining whether or not the stated, legitimate reason was pretextual.

The Third Circuit Court of Appeals, whose rulings directly impact federal cases in New Jersey, Pennsylvania, and Delaware, decided that this was incorrect.

For workers seeking to pursue retaliation claims like this one, the importance of the ruling was when the appeals court stated that an “employer’s motivation for investigating an employee can be relevant to pretext.” At the summary judgment phase of a case, the range of evidence the court can consider is quite broad. You can use anything from your employer’s “antagonism” to “inconsistencies in the reasons” it gave for its adverse action to basically “any other evidence suggesting that the employer had a retaliatory” motivation fueling it when it took its adverse action.

When considering the evidence of pretext, federal courts are instructed to “look at the totality of the circumstances.” This broad analysis is necessary to protect workers because, as the appeals court noted, anything less “would not only immunize employers who retaliate against employees only after they stumble upon something that would justify their termination; it would also incentivize” retaliatory investigations.

As an example of what employers cannot do, the appeals court looked at a 2013 case from Illinois. In that case, an employee of the state gaming board helped a colleague file a discrimination charge. Not long after that, the board investigated the employee and after much digging, eventually found that he had violated an official policy, which the board used to fire the man.

The federal appeals court reviewing that case concluded that, even if the policy violation was 100% legitimate, the investigation was not. The employee’s evidence tended to show that that the board began investigating him not because it thought he was failing to follow official policies, but because the board desired to build a case for termination — a desire that sprang from the employee’s aiding his coworker in a discrimination lawsuit.

J.C.’s situation was similar. The employer contended that the search arose after it needed to move J.C.’s locker because it obstructed a surveillance camera. That legitimate basis only explained moving the locker; it did not explain opening the man’s locker and definitely did not explain opening J.C.’s password-protected cell phone and searching the contents inside it. When it dove into the phone’s contents, the employer had no reasonable suspicion that J.C. had violated any conduct policies.

Employers can retaliate against you in a number of ways. Sometimes, the retaliatory motives are “baked into” the internal investigation that precipitated your firing. However it happened, if your pursuit of your anti-discrimination or FMLA rights was what drove your employer, they may have violated the law. In these circumstances, the skilled New Jersey employment retaliation attorneys at Phillips & Associates are here to help you seek justice. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post How an Employer’s Internal Investigation May Form the Basis of an Employee’s Winning Retaliation Claim appeared first on New Jersey Employment Lawyer Blog.

While discrimination based on pregnancy has been a violation of federal law generally since 1978 (when the federal government enacted the Pregnancy Discrimination Act,) many holes in the federal law remained, leaving pregnant workers and working moms with infants vulnerable in a variety of ways, especially when it came to nursing their newborns or expressing breast milk for that baby.

Congress initially passed a bill to protect moms who breastfeed or pump at work in 2010, and President Obama signed it into law. However, because that language got placed in a provision of the federal statutes dealing with overtime compensation, moms who were not entitled to overtime pay were not covered by the 2010 law’s protections. That fraction represented roughly 25% of “working women of childbearing age,” according to the Economic Policy Institute.

The PUMP Act closes that loophole, expanding protection to breastfeeding mothers in a variety of fields where they’re not eligible for overtime pay, ranging from teaching to nursing to engineering to transportation work.

The ‘Teeth’ of the PUMP Act Become Effective Later This Month

Of course, simply passing a law that places an obligation on employers often isn’t enough. In order to motivate some employers to follow the law, it is also often necessary to allow harmed workers to bring civil lawsuits against their employers and obtain financial compensation.

The PUMP Act recognizes this and contains enforcement provisions allowing a working mom who’s been the target of illegal practices to bring a federal lawsuit under the Fair Labor Standards Act. The violations that can allow a working mom to pursue this sort of FLSA claim include an employer’s failure to provide an appropriate area to express milk, failure to provide break time for pumping, and (in some instances) failure to pay the mom for those breaks.

When it comes to the appropriate area requirement, the law provides some specifics. The place the employer designates for a working mom to breastfeed or express milk must “be shielded from view and free from intrusion by coworkers or the public,” and it cannot be a bathroom.

What the New Jersey Law Against Discrimination Says

New Jersey amended the Law Against Discrimination in 2018 to include protections for breastfeeding mothers. New Jersey includes some added protections as compared to the federal law, such as requiring that the mother’s breastfeeding/pumping space be “in close proximity” to her work area.

Like the federal law, there is an enforcement element to New Jersey’s anti-breastfeeding discrimination requirements. This includes a “private right of action” (where the harmed mother sues directly in civil court,) or action by the state Division on Civil Rights.

A 2020 case shows just how badly far short of the legal requirements some workers’ provisions may be. In that case, the DCR took action against an employer in Burlington who assigned as its designated pumping location a utility room. While it’s technically possible for a utility room to meet the minimum mandatory standards, this one allegedly had numerous problems regarding proper privacy.

Allegedly, the door had no lock on it for the first three months and the room contained supplies that coworkers needed frequently throughout the workday. According to the mother, she had to “lean up against the unlocked door in an attempt to ensure privacy” while she pumped, but still sometimes had to deal with colleagues who entered the room to get supplies while she expressed milk. Her manager also allegedly interrupted her pumping, demanding that she “hurry up and finish” due to the presence of waiting customers.

Whether your employer discriminated against you because of your pregnancy, childbirth, or post-childbirth condition like breastfeeding/expressing milk, your employer may have violated the law. When that happens, the knowledgeable New Jersey pregnancy discrimination attorneys at Phillips & Associates are here to help you seek justice. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today. Whether you’re in Passaic, Bergen, Morris, Essex, Union, Hudson, Somerset, Middlesex, Monmouth, Mercer, Burlington, or Camden County, we’re eager to get to work for you.

The post What the Newly Enacted ‘PUMP Act’ Means for New Jersey Working Moms Who Breastfeed appeared first on New Jersey Employment Lawyer Blog.

These issues of state anti-discrimination law versus federal law are sometimes quite significant as, in some ways, the procedural requirements between the two can vary in important ways.

Take, for example, the multi-faceted discrimination case of E.D., a woman who worked for an insurance entity. Her complaint alleged that she endured disability discrimination when her employer failed to engage in a good faith interactive process to provide her with a reasonable accommodation after her return to work from emergency surgery.

Eventually, according to the complaint, the employer engaged in age discrimination by terminating E.D. and replacing her with a younger worker.

On those bases, E.D. sued for violations of the Law Against Discrimination, including disability discrimination, age discrimination, and hostile work environment.

The Exhaustion of Administrative Remedies

E.D.’s case illustrates some key differences between age discrimination and disability discrimination claims under the LAD versus age discrimination and disability discrimination claims under federal law.

When you’re pursuing federal claims under the Age Discrimination in Employment Act and/or the Americans With Disabilities Act, the law requires you to engage in something called “exhaustion of administrative remedies.” That means that, before you can take your age discrimination or disability discrimination claim to court, you first must file a complaint with the U.S. Equal Employment Opportunity Commission.

If yours is a disability discrimination claim under the ADA, you must wait for a response from the EEOC and obtain a “right to sue” letter before heading to court. If yours is an age discrimination case under the ADEA, you also have to file with the EEOC, but you do not have to wait for a “right to sue” letter from the EEOC before suing in court.

By contrast, New Jersey law imposes no requirement of exhaustion of administrative remedies, meaning that you can bring an age discrimination or disability discrimination claim under the LAD in court without having ever filed any complaint with any New Jersey state government agency.

Because E.D. had not filed with EEOC, she could not go forward with her ADEA age discrimination and ADA disability discrimination claims but could proceed with causes of action for age discrimination and disability discrimination under the LAD.

Properly Pleading an Employer’s Failure to Accommodate a Disability

When you’re pleading a failure-to-accommodate claim under the LAD, you have to allege several things, including that (1) your employer knew about your disability, (2) you requested an accommodation, (3) your employer did not make a good faith effort to accommodate you, and (4) you could have been accommodated if your employer had acted in good faith.

As a predecessor to establishing that your employer knew about your disability, you also have to allege that the condition you had qualified as a recognized disability under the LAD. In E.D.’s case, her pleadings did not properly lay out allegations that she had a disability and did not assert that she made a request for accommodation when she returned to work. Those kinds of allegations are essential to stating a viable failure-to-accommodate claim under the LAD.

Sometimes, even a step back can lay the groundwork for a major leap forward. In E.D.’s case, the court dismissed her failure-to-accommodate claim without prejudice. That means that she is free to refile an amended complaint that fixes the pleading deficiencies the court identified. With a properly drafted amended complaint, this worker has the potential to proceed with the failure-to-accommodate claim in addition to the other discrimination claims.

Whether or not your lawsuit involves claims that require the exhaustion of administrative remedies, they inevitably involve procedural obligations and pleading necessities that, if not followed, can derail or delay your case. To make sure you’re satisfying what the law demands, skilled legal representation is key. The diligent New Jersey disability discrimination attorneys at Phillips & Associates are here to help. We represent workers in Passaic, Bergen, Morris, Essex, Union, Hudson, Somerset, Middlesex, Monmouth, Mercer, Burlington, and Camden Counties, among other areas, and we’re committed to helping workers hurt by discrimination get justice. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post Federal Versus New Jersey Age Discrimination and Disability Discrimination Laws: What’s the Difference? appeared first on New Jersey Employment Lawyer Blog.

V.P. was a municipal court judge in Newark whose LAD case was one of perceived disability. Problems came to a head in May 2017 when, one day, the chief judge believed she smelled alcohol on V.P.’s breath. The judge denied that she’d been drinking.

The chief judge contacted the city’s personnel director and informed her that the judge “was intoxicated and emanating the smell of alcohol…” The memo also contained the chief judge’s accusation that she suspected V.P. of being drunk at work one time before.

By late May, the city had decided not to renew the V.P.’s contract, thus ending her employment as a municipal judge. V.P. made multiple inquiries and allegedly “was told the impetus for her termination was” a letter from the chief judge asserting that V.P. was drunk at work. In a subsequent session of the city council, the personnel director asserted that she had offered V.P. treatment for her alcohol problems, but the judge had refused that option.

Ultimately, the judge sued the city for disability discrimination in violation of the LAD — specifically, alcoholism. V.P. asserted that she was not an alcoholic, but that her bosses perceived her to be and illegally fired her as a result.

The Appellate Division court concluded that V.P.’s allegations made out a viable claim of disability discrimination. In reaching that outcome, the court pointed out that an employer need not act with bad intentions to be liable for violating the LAD. The law merely requires a worker advancing a discrimination claim to show discrimination that “would not have occurred but for her protected status,” regardless of whether the employer’s violations were intentional or unintentional.

The New Jersey Supreme Court has long held that alcoholism is a disability under the LAD, meaning that an employer’s adverse action based on a belief that an employee is an alcoholic is possibly actionable based on that perceived disability.

The Essential Elements of a Claim of Perceived Disability Discrimination

When you’re taking on a case like that, you need to allege four essential things:

1. that your employer perceived you as disabled
2. that you remained “qualified to perform the essential functions of the job and were performing at a level that met the employer’s expectations”
3. that your employer took an adverse action against you due to your perceived disability
4. your employer subsequently sought a “similarly qualified individual” to replace you

The city argued that the judge failed to meet the adverse action element, namely, that she was merely not re-appointed when her term ended at the end of May. The court rejected that position. In 1981, the Supreme Court, in a ruling of great import for educators and others whose continued employment is predicated on serial renewals of fixed-duration contracts, stated that “no functional difference exists between the failure to reappoint at the end of [a] fixed term and the dismissal of an at-will employee.”

This meant that the non-renewal of V.P.’s contract was the functional equivalent of termination for purposes of LAD analysis and she had met the “adverse action” requirement of the law.

The remainder of V.P.’s allegation sufficiently clearly laid out a case in which her bosses thought she was an alcoholic, ended her contract, and replaced her despite her remaining qualified and capable of doing the essential tasks of her job as a municipal judge, meaning she had adequately pled a prima facie case of discrimination.

Discrimination in the workplace is wrong. That’s true if you’re an older worker, a worker with a disability, an LGBTQ+ worker, etc., but it’s equally true if you’re employer punished you because they thought you were one or more of these things, but you actually were not. Whether you were harmed at work because you were disabled or your employer mistakenly believed you were, the skillful New Jersey disability discrimination attorneys at Phillips & Associates can help. We have extensive experience representing New Jersey workers like you and are eager to discuss how we can help you get justice. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post The Appellate Division Court Revives a New Jersey Municipal Judge’s Discrimination Case Predicated on Her Perceived Alcoholism appeared first on New Jersey Employment Lawyer Blog.

A recent sexual harassment case from here in North Jersey is an example of what we mean.

K.B. was an administrative worker at a hospital in Bergen County. In 2016, the employer promoted her to office manager and assigned her to work for A.H., a doctor of internal medicine. The manager and the doctor engaged in a mutually consensual romantic affair.

The manager’s husband eventually discovered the adultery and reported the affair to the hospital’s president and CEO. Because the hospital had a rule barring relationships/dating between coworkers who worked inside the same department, the employer eventually relocated the office manager to a new department.

The relationship ended in August 2016. The employer fired K.B. on Sept. 9, purportedly for misconduct unrelated to the affair. Subsequently, the manager sued, alleging sexual harassment and a hostile work environment.

New Jersey and federal law have made it clear that even if sexual interactions were consensual (in the sense that the victim “was not forced to participate against her will”), they still can be the basis of a winning sexual harassment claim under Title VII if the advances were “unwelcome.” However, a relationship’s consensual nature automatically “negates the elements of” a hostile work environment claim.

While this employee lost her case because of certain specifics tied to the nature of her claims and the exact nature of the relationship she had with the doctor, it’s important to keep in mind that a consensual relationship can still sometimes be the foundation of a successful lawsuit. For example, if you decide you want to end the affair but you ultimately stay in the relationship because your partner has threatened to harm you professionally if you leave, then that could possibly constitute a form of actionable quid pro quo sexual harassment.

Alternately, say that you engaged in an affair with a coworker and then you ended the relationship, indicating that you wanted your relationship going forward to be strictly professional. In that scenario, romantic propositions and sexual comments and messages by your ex-partner in the days, weeks, and months after the relationship’s end could amount to proof of a viable sexual harassment claim.

Additionally, if you end a mutually consensual and welcome relationship and your ex-partner takes action that adversely affects you at work, then they — and your employer — possibly could be liable for sexual harassment, even if your ex-partner never made any post-breakup inappropriate comments or advances, or otherwise sought to resume the relationship with you.

An Interoffice Romance is Not Automatically Illegal Sexual Harassment

Sometimes, though, neither you nor your partner did anything illegal, but you still suffer adverse action at work as a result of the relationship. When that happens, you may have a different avenue of legal action available to you. New Jersey law is clear that consensual and mutually welcomed sexual relationships between coworkers do not automatically constitute sexual harassment.

So, if your employer fires, demotes, suspends, or otherwise punishes you for an office romance that both parties desired and welcomed — on the basis that you engaged in sexual harassment — then you may have a case of wrongful termination. As the Appellate Division court explained, it “is established that an employer violates clear public policy by firing an employee for alleged sexual harassment based on employee’s consensual romantic relationship with a coworker. Such a wrongful discharge is a violation of the clear mandate of New Jersey public policy.”

Workplace sexual harassment can come in many forms and types. Sometimes, it even can happen in connection with a consensual relationship between two coworkers. Regardless of the particulars, if you think you have been the victim of workplace sexual harassment, you owe it to yourself to speak to legal counsel. The knowledgeable New Jersey sexual harassment attorneys at Phillips & Associates are here to help. We’ve aided countless New Jersey workers to navigate the sensitive world of sexual harassment claims and would be eager to discuss the options that exist for you. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post How You May Have Been a Participant in a Consensual Office Affair and also a Victim of Sexual Harassment appeared first on New Jersey Employment Lawyer Blog.

A recent case from the Appellate Division court shows the impact of this new law (and others,) and represents a bit of good news for people who are now going to court to file their sexual harassment complaints.

In January 2020, P.R. and his employer signed an employment contract that said that all claims — including issues of discrimination, harassment, and/or retaliation — would be subject to arbitration.

In June 2021, the employer fired P.R. Six months later, P.R. sued, alleging sexual assault, sexual harassment, and retaliation. The employer sought to enforce the arbitration clause and move the case to an arbitration setting.

On the surface, P.R. seemed to have some law in his favor. One piece was the New Jersey Law Against Discrimination. Section 12.7 of the LAD says that any “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable.”

Despite the broad coverage of Section 12.7, P.R. lost. Why? The key was something called “federal preemption.” That concept, rooted in the Supremacy Clause of the U.S. Constitution, says that when federal and state law conflict, the state law is preempted and federal law governs.

In P.R.’s case, the federal law — the Federal Arbitration Act — said that agreements like the ones P.R. and his employer signed were valid and enforceable. Under the doctrine of preemption, that meant that the FAA trumped Section 12.7 of the NJLAD and the employer was entitled to demand arbitration.

So How is This Outcome Good News for Other Workers?

The good news is that P.R. was a victim, not just of federal preemption, but also of unfortunate timing. In March 2022 — three months after P.R. filed his sexual harassment lawsuit — President Biden signed into federal law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. That federal statute amended the FAA and says that employment agreements to arbitrate sexual assault or sexual harassment claims are invalid and unenforceable if the parties signed them before the sexual assault and/or sexual harassment in question occurred.

Had P.R. filed suit after March 3, 2022, the new act amending the FAA would have controlled and would have made the arbitration provision in P.R.’s employment contract unenforceable. For all workplace sexual harassment victims who have sued after March 3, the amendment does control and will work to invalidate arbitration agreements of this type.

The Ending Forced Arbitration Act is considered one of the pieces of legislation triggered, at least in part, by the #MeToo movement. More and more employers began demanding the execution of arbitration agreements covering various employment-related claims ranging from breach of employment contract to discrimination/harassment to wage and hour disputes.

At the same time, many workers harmed by sexual harassment came to favor the courts. While arbitration generally offers greater privacy, some workers preferred the opportunity to present their cases in a public setting to expose their employers’ bad acts and to “out” serial harassers.

One important thing to understand is what the Ending Forced Arbitration Act and Section 12.7 of the LAD do not do. These newer laws do not demand that you litigate your sexual harassment case in court. If you have signed an arbitration agreement with your employer, these laws simply say that your employer cannot force you to arbitrate. Effectively, these laws allow you to be the one who decides whether your case will proceed in court or in an arbitration setting.

The law of sexual harassment — in particular, the law of sexual harassment in relation to mandatory arbitration of claims — is changing in the wake of the #MeToo movement. If you’ve been the victim of workplace sexual harassment and also someone who signed a mandatory arbitration clause, you may today have more options than ever before. The experienced New Jersey sexual harassment attorneys at Phillips & Associates are here to outline for you all of those options, and which one(s) make the most sense given your specific circumstances and preferences. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post Mandatory Arbitration Agreements and Sexual Harassment Claims in New Jersey Now That the Ending Forced Arbitration Act is Federal Law appeared first on New Jersey Employment Lawyer Blog.

The age and race discrimination case of two North Jersey school employees was a reminder of this truth for one Essex County school system. As nj.com reported, one of the educators, A.D., was a White woman in her 60s working at a Newark high school where the student population was 90% Black. The other educator, D.S., also was a White woman in her 60s and served as the chair of the math department at a high school where the student population was 78% Latino.

In 2013, when the educators were in their 50s, they applied for vice principal positions. Both were rejected. D.S., in fact, got transferred to a different school and demoted to lunch aide, according to the lawsuit. A.D. allegedly got reassigned, which carried with it a pay cut.

The candidates the district hired into those vice principal positions were people of color who were also younger, less experienced, and less qualified, according to the women’s complaint.

The jury in the case concluded that the school district discriminated against the women based on their race and their age and awarded more than $1.3 million in damages.

These women’s success is an example of several things worth keeping in mind. One, the sole fact that the jurors who will hear your discrimination case may look different from you is not, by itself, necessarily a reason to shy away from taking your case to trial. The eight-member jury who returned a judgment for these White educators included four Black people and one Latina woman… and just three White people.

Assessing the ‘Value’ of Your Employment Discrimination Case

Additionally, these Newark educators’ success is a reminder that, with a properly presented case, you can potentially recover substantial damages, even if others’ cases might have been worth less. In law school, students learn about the doctrine of the “eggshell plaintiff,” which teaches that people who engage in misconduct – be it negligence, recklessness, or a statutory violation – are responsible for the harm their misconduct caused to the actual victim, even if that victim suffered vastly more harm than most people would have incurred.

For example, in the Newark discrimination case, the math educator allegedly retired shortly after her demotion because that employment action caused her to suffer a nervous breakdown. When the district moved the other woman to a teaching position, that reassignment triggered a reduction in pay, which in turn meant she could no longer afford the mortgage on her home, which forced her to move to Florida, according to the complaint.

Obviously, the employment actions this school district took would not normally have such dire consequences in most instances. Most people wouldn’t have a nervous breakdown or be forced to relocate out of state, but that doesn’t matter. The women were entitled to recover compensation based on the harm the employment action actually caused to them, not what those actions would have inflicted on an average person. That meant that each woman was entitled to more than $600,000 in damages, with one receiving $608,000 in lost income compensation and the other receiving $417,000 in lost income damages plus another $200,000 for pain and suffering compensation.

Discrimination based on race is both illegal and it is wrong. That’s true whether you’re Black, White, or someone of mixed race. If you’ve suffered harm at work because of your race, you’re entitled to take action and seek compensation from those responsible. When it comes time to take that action, the knowledgeable New Jersey race discrimination attorneys at Phillips & Associates are here to be your trusted advocate and advisor at every step along the way. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post Two White School Employees in Newark Recover $1.3M Jury Award in Race Discrimination Action appeared first on New Jersey Employment Lawyer Blog.

S.S. was a woman who worked as a sales manager for an Atlantic City resort. She also was someone who allegedly encountered gender-based unequal pay.

In 2020, the woman applied for the role of “Selling Manager.” The selling manager position had only been created two years prior, and the resort’s only previous selling manager had been a man. That man, T.M., had been paid both a salary and commissions. The resort selected S.S. and another woman to be its new selling managers, but neither received a base salary as part of their compensation packages. Additionally, neither woman received a specific type of commission (called a “takeover” commission) that the male selling manager had received, and neither had as many team members as the man had.

S.S. sued, arguing she was the victim of gender-based unequal pay in violation of the New Jersey Equal Pay Act.

When you are seeking to recover damages under an NJEPA claim, you bear the initial burden of proof. Before your case can go any further, you have to demonstrate discrimination to the court “by showing that ‘employees of the opposite sex were paid differently for performing ‘equal work’- work of substantially equal skill, effort and responsibility, under similar working conditions.’”

S.S.’s case was sufficient to satisfy that requirement. The basis of her case was comparing and contrasting her pay to that of T.M. Both S.S. and T.M. held the same roles – selling managers – which necessarily established that they had both done work of equal skill, effort, and responsibility. Furthermore, she established that she and T.M. did not receive equal pay as he received a salary and she did not. Even though the employer alleged that the man’s receipt of a base salary was the result of a “payroll error,” that assertion did not alter the reality that T.M. received “differential pay.”

On top of those facts, the woman also alleged that, when she applied for the selling manager job, the job posting stated that the position was a salaried job. This further strengthened her prima facie case of unequal pay in violation of the law.

Four Defenses to an Equal Pay Claim

Once you’ve cleared that hurdle, the burden shifts to your employer. Your employer can still defeat your claim if it can show that one or more of four affirmative defenses applied to its situation. Those four are: “(i) a bona fide seniority system, (ii) a merit system, (iii) a system which measures earnings by quantity or quality of production, or (iv) a differential based on any factor other than sex.”

The employer’s proof must be so strong “that no rational jury could find to the contrary.’” S.S.’s employer didn’t have that. It argued that the payment of the salary to the man was an error and so was the part of the job listing that said the role was a salaried one. However, as the court noted, the employer provided no evidence as to when it “corrected” the error, when (or if) the employer ever stopped paying a salary to the man (prior to his leaving the company,) or if the employer ever sought to recover the wrongfully paid salary from the man. On that basis, the court decided that “a reasonable jury could infer either that Defendant’s business practices are lacking, resulting in the payment of salaries that are not owed, or the payment of the salary to” was never an error at all, but an intentional decision to pay the man compensation it did not pay S.S.

Given the proof the two sides did (and didn’t) have, the employer wasn’t entitled to summary judgment, and the woman was entitled to take her case before a jury.

If you’ve experienced gender discrimination at work – whether in the form of unequal pay or some other type of illegal conduct – don’t hesitate to fight back. The knowledgeable New Jersey gender discrimination attorneys at Phillips & Associates are here to help you to take on your employer and get the compensation to which you are entitled. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

The post An Employer’s Argument of ‘Payroll Error’ Wasn’t Enough to Stop a New Jersey Woman’s Unequal Pay Claim appeared first on New Jersey Employment Lawyer Blog.