NJ Bill Prohibits Restraints on Litigating Discrimination Claims

NJ Bill Prohibits Restraints on Litigating Discrimination Claims

The NJ Senate recently introduced legislation, no doubt intending to improve the rights of employees who have discrimination claims, by requiring more transparency in litigating these claims. This bill, S3581, provides that provisions in an employment contract that waive “any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment” are contrary to public policy and would be unenforceable. Furthermore, this bill would prohibit any “prospective waiver of rights or remedies” such as a jury trial or mandatory arbitration of discrimination claims under the New Jersey Law Against Discrimination (“LAD”).

This bill also contains a provision designed to eliminate non-disclosure provisions in agreements resolving claims under the LAD. It deems these clauses as against public policy and therefore unenforceable.

Moreover, the bill prohibits an employer from taking retaliatory action (e.g., refusal to hire, discharge, suspension, or demotion) on the grounds that an individual refuses to enter into an agreement with terms contrary to the above.

Lastly, to the extent an employer seeks to enforce an agreement contrary to the bill, the employee may collect costs and reasonable attorney’s fees for defending against any such suit.

The bill would affect settlement agreements prospectively (not those entered into prior to the effective date specified). It also does not apply to the terms of collective bargaining agreements.

If passed, this bill would likely dramatically affect litigation and strategy of claims brought under the LAD. The inability of an employer to utilize arbitration procedures or insist upon confidentiality in settlement agreements may result in fewer out-of-court resolutions and more protracted and costly litigation. This is a double-edged sword for both employers and employees. That is, many employees would prefer to have their claims resolved privately without having to endure a long and public court battle.

Coming Forward with Sexual Harassment Claims

Weinstein, Ailes, Uber: Coming Forward with Sexual Harassment Claims

Weinstein, Ailes, Uber: Encouraging Women To Report Harassment             Recent headlines are rife with salacious stories of powerful men sexually harassing female subordinates in the workplace.  But what is even more troubling to me than the details of the predatory behavior, is the complicity of co-workers, supervisors, senior executives and even outside Board members in keeping the allegations private so that business can continue as usual.  This culture of sweeping things under the rug and prioritizing the status quo greatly inhibits the ability to make positive, real change in this area.

Women will only have the courage to come forward with their claims of sexual harassment if they are confident that they won’t be retaliated against for reporting the incident.  How can a woman be so sure of this?  It is only when they can see that other women who have reported harassment in the past suffered no adverse employment consequences, such as demotion or termination.  This type of transparency is impossible when a company forces its employees to sign a mandatory arbitration clause or agreement that prohibits the employee from disclosing the fact of and details of the case.

With an arbitration agreement, the employee who brings a sexual harassment claim is prevented from bringing the case to a court of law, often in front of a jury of her peers. Arbitration agreements are very popular with employers who hope that they will resolve employment disputes more quickly and less expensively than litigation. Yet, as Gretchen Carlson explains in her recent NYTimes op ed piece these arbitration clauses overwhelmingly benefit employers since, studies show that many arbitrators find in favor of the employer and not the employee.  Moreover, even if an employee does prevail in arbitration they are bound by confidentiality provisions not to reveal their claims. This will also benefit the employer since it can continue to protect the harasser. Conversely, when an employee prevails in a judicial setting, the decision is part of a public record.  Public disclosure would likely prompt a company to take appropriate remedial measures to address the harassment and the harasser.  Women can then more confidently rely on Company assurances that no retaliation will occur upon a report of sexual harassment.

Confidentiality provisions are appropriate in the pre-litigation settlement context where neither the victim or the alleged harasser have had a chance to call witnesses and the claims adjudicated in accordance with the applicable legal standard of review.







New Jersey Pregnancy Discrimination Case Can Be Heard By Jury

New Jersey Pregnancy Discrimination Case Can Be Heard By Jury, August 2017

Wrongful Termination Case

The New Jersey Appellate Division has ruled, in Roopchand vs. Complete Care, et al, that a pregnant medical technician presented a prima facie case of pregnancy discrimination in her wrongful termination lawsuit when her former employer fired her for refusing to climb a ladder because her pregnancy was “high-risk.”

The Appellate Division reinstated Roopchand’s suit on August 3, 2017, after the Superior Court dismissed the case, holding that the employer articulated a legitimate, nondiscriminatory reason for Roopchand’s firing, her insubordination.

Sandra Roopchand worked at the medical office in 2013 and 2014.  Her duties included both patient care and administrative duties.  Her normal duties did not include cleaning windows.  During her employment, plaintiff was never disciplined. In July 2014, she told Dr. Schaller, one of the two owners of the medical practice, that she was pregnant and that her pregnancy was high-risk, requiring her to see her obstetrician weekly.  Later in the month, the Defendants reduced Roopchand’s work hours to a part-time schedule.  The next day, she overheard Dr. Schaller telling the other owner, Dr. Fallon, “I don’t care, she’s a liability.”  When Roopchand was busy working with a new patient who needed bloodwork and X-rays, Dr. Fallon came up to her and asked her to wash the windows on the second floor office.  She told him, “I don’t do windows.”  Roopchand testified that she did not think the doctor was serious about her washing the windows since it was not part of her job description nor was it something she had seen anyone working in the office do before.  Moreover, she would have had to get up on a ladder to clean the floor to ceiling windows.  Dr. Fallon asked her two more times, and she refused again, so he fired her.

The lower court had dismissed this case, finding that Roopchand’s refusal to follow Dr. Fallon’s directive to wash the windows constituted insubordination, and was a legitimate, nondiscriminatory reason for her firing.  The court rejected Plaintiff’s claim that this was just a “pretext,” or an excuse to cover up the real, discriminatory reason for the termination.  The court also noted that Ms. Roopchand’s doctor had not placed her on any work restrictions when she refused to wash the windows.

On appeal, the three judge, all female, panel looked to the Pregnant Workers Fairness Act (PWFA), which modified the New Jersey Law Against Discrimination to incorporate “pregnancy” as a protected characteristic, for guidance.  The Court held that Roopchand made out a prima facie case for disparate treatment under the PWFA because she was part of a protected class of pregnant workers and her employer knew of her pregnancy; she was performing her work duties; she suffered the adverse employment action of being demoted to part-time status, ordered to wash windows, and then fired; and she was required to perform an act outside the scope of her job description, that other non-pregnant employees were not required to perform, thereby raising an inference of unlawful discrimination.

The Court held that, regardless of whether Roopchand’s request to visit her doctor weekly is viewed as a pregnancy accommodation, she demonstrated sufficient evidence of pregnancy discrimination to survive summary judgment.

This case noteworthy because reversals on appeal of summary judgment are rare.  The case will go back to the Law Division for a trial in the fall.


Practice Tips for a Successful Workplace Investigation

Practice Tips for a Successful Workplace Investigation
Former Uber engineer Susan Fowler Rigetti’s story of sexual harassment and the company’s inadequate response to her multiple complaints, highlight how important it is for a company to have an effective action plan in dealing with these sensitive issues.

The following is some practice pointers on what a company should do (and not do) when it receives an employee complaint of discrimination/harassment or other misconduct by another employee:

  1. Understand the complaint

Before taking action, it’s important to understand what the employee is complaining about. The company must know who is involved, what is alleged to have happened, as well as when, where and, if possible, why it occurred. The company should try to understand what the complainant is seeking without making any promises or assurances regarding how it will resolve the complaint.

  1. Should the company investigate?

Investigations can involve a significant allocation of time and financial resources so before a company conducts an internal or private outside investigation into a complaint, it should consider whether it is appropriate for an investigation to be undertaken or whether there is a better option for resolving the complaint – such as mediation of an interpersonal disagreement between colleagues.

  1. Review policies and procedures

Many employers have policies and procedures enacted that provide guidance or structure about how a workplace complaint should be handled or an investigation conducted. Therefore, once a complaint is received, the company should review its policies and procedures to ensure it is in compliance.

  1. Appointing an investigator

 The decision of whether to appoint an investigator or not should be made on a case-by-case basis. Although, it is less expensive to designate an internal investigator, there are times when a company should hire an outside investigator. The outside investigator is perceived as more neutral and may have greater expertise in conducting investigations and drafting investigation reports. Many companies hire an experienced attorney to serve as an outside investigator since the attorney is skilled at interviewing witnesses, making credibility assessments and writing effective reports.

  1. Keep the lines of communication open

If the employer undertakes an investigation into the complaint, it should take care to keep the lines of communication open with all of the involved parties. By actively managing expectations, the company can minimize some of the stress that is often associated with an investigation.

  1. Weighing and Assessing the Evidence

 Assessing conflicting evidence provided by investigation participants is a daunting task for many investigators. In addition to interviewing witnesses, the interviewer should review emails, file notes and other relevant documents or recordings. To the extent there is conflicting testimony given by witnesses, the investigator should make a credibility assessment in weighing the evidence. Sometimes a finding cannot be made and the investigation should properly be labeled as “inconclusive.”

  1. Take action

Once an investigation is concluded, a company should ensure that it promptly communicates the finding of the investigation to the parties involved. Where the investigation findings are likely to result in disciplinary action for an employee, the company will need to ensure that the employee is afforded procedural fairness throughout the disciplinary process. Even when an investigation has been inconclusive, there are still steps that could be taken, such as trainings on appropriate workplace behavior.

  1. Reassess

After the investigation is concluded, the company should review its policies, procedures, practices and on-going employee trainings to see whether its overall process in handling these sensitive employee complaints can be improved upon and whether an outside professional can assist with this process.

Rina Traub, of Traub Law in Princeton & East Brunswick, NJ,  is an experienced counselor and advocate for New Jersey’s executives, professionals and business owners.
Ms. Traub also counsels businesses on employment matters, including legal compliance, handbooks, and employer/employee relations.  For Workplace Investigations, Contact her at (609) 951-2204.


Third Circuit Rules Workers Age 50+ Can Be Considered Subgroup in Testing for Discrimination

Third Circuit Rules Workers Age 50+ Can Be Considered Subgroup in Testing for DiscriminationThird Circuit Rules Workers Age 50+ Can Be Considered Subgroup in Testing for Discrimination

New Jersey’s Third Circuit recently held in Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435, 2017 WL 83385 (3d Cir. Jan. 10, 2017), that workers in their 50s may be recognized as a “subgroup” of employees protected by the Age Discrimination in Employment Act (“ADEA”) if an employer’s policies inadvertently disfavor them relative to their co-workers who are over age 40 and, therefore also protected employees under this law.

The plaintiffs in Karlo were all over age 50 and had worked in defendant’s Manufacturing Technology division until they were terminated in 2009 as part of a reduction in force. Plaintiffs then brought a collective action under the ADEA, asserting disparate treatment, disparate impact, and retaliation as to two of the plaintiffs. The district court granted the employer’s motion for summary judgment on the disparate impact claim, holding that a disparate impact claim for the “fifty-and-older” subgroup relative to their younger yet age-protected co-workers was not permitted under the ADEA because the law does not permit subgroup claims. The court also found that plaintiffs lacked evidence to support their claim.

The Third Circuit reversed the district court’s ruling on summary judgment and held that the plaintiffs could pursue their claims. According to the court in Karlo, plaintiffs are permitted to use subgroup comparisons and similar evidence to demonstrate the significantly disproportionate adverse impact necessary for a disparate impact claim under the ADEA. The appeals court emphasized that the ADEA prohibits age discrimination as a whole, not just discrimination against employees ages 40-and-over. Thus, the court found that the plaintiffs are permitted to bring claims alleging that they were treated less favorably than their younger counterparts, even where their younger co-workers included employees within the ADEA’s protected class.

This decision represents a departure on this issue from several other circuit courts that have previously not allowed such “subgroup” claims. The United States Supreme Court may need to resolve this split. As always, we will update this blog should the Court consider this issue in the future.



Employer’s Failure to Use Employee’s New Name Does Not Amount to National Origin Discrimination

Judge Kevin McNulty of the U.S. District Court for the District of New Jersey dismissed a pro se action that plaintiff Erwin LeJon-Twin El, who changed his name upon joining the Moorish Science Temple of America, brought against his employer Impax Laboratories alleging several claims of discrimination based on his national origin.

In October 2014 Mr. LeJon-Twin El announced his new name to his employer. The employer agreed to use the new name whenever possible but would still use his birth name for federal I-9 and payroll tax purposes. The employer agreed to use the new name whenever it was legally changed.

In April 2016, LeJon-Twin El sued Impax, claiming the company discriminated against him based on his national origin. The Court held that an employer’s making out a paycheck to a worker under his birth name, rather than a new name that was not formally changed through appropriate government channels, was not a discriminatory act. Moreover, the Court found that plaintiff, who was still being paid with no diminution in pay, responsibilities or benefits, had not suffered an adverse employment action.

NJ Supreme Court holds State Police Did not Waive Immunity in ADA Case

The NJ Supreme Court recently ruled that the New Jersey State Police’s failure to assert a sovereign immunity defense during its trial on an Americans with Disabilities Act claim does not constitute a waiver of sovereign immunity.

This case was brought by Brian Royster, a state trooper who suffered from ulcerative colitis. His condition required that he have immediate access to a bathroom while on the job. After returning from medical leave for treatment of his condition, his department assigned him to conduct surveillance from a car. He repeatedly asked to be moved to an assignment that offered access to a restroom, but he remained on the surveillance assignment for seven months.

Royster filed suit against the state police, asserting, among other claims, that it failed to make reasonable accommodation for his medical condition in violation of the ADA and the NJLAD, and for retaliation under the ADA, NJLAD, and the New Jersey Conscientious Employee Protection Act (“CEPA”). The state trial court dismissed several claims, leaving only the CEPA retaliation and the ADA failure-to-accommodate claim for trial. The jury awarded the employee $500,000 in damages on the ADA claim.

The state then moved for judgment notwithstanding the verdict (“JNOV”), asserting for the first time that the trial court lacked subject matter jurisdiction over the ADA claim because the police, as a state actor, had sovereign immunity. The employee countered that it was unfair to allow the police to raise a sovereign immunity defense after the jury’s verdict, and asked the trial court to retroactively convert the remaining ADA claim to an NJLAD claim since the claims and arguments under both statutes were identical. The trial court denied the employee’s request, and also denied the state police’s motion for JNOV, holding that the state police were estopped from asserting lack of jurisdiction after waiting over seven years and the completion of trial. The state police appealed and the Appellate Division reversed, holding that because the state’s sovereign immunity extended to the state police, the sovereign immunity defense could be raised at any time, and the police had not waived sovereign immunity through its litigation conduct. The Supreme Court then granted the employee’s petition for certification, and considered whether the state police were entitled to sovereign immunity on Royster’s ADA claim, and whether it had waived that immunity.

The Supreme Court held that it could not nullify sovereign immunity for federal claims under the ADA, regardless of the state’s delay in raising the defense. The state police were an arm of the state, and because the state legislature had not consented to be sued under the ADA, the police enjoyed sovereign immunity from the ADA claim. Nor did the state police waive sovereign immunity through its litigation conduct. Although a state that is involuntarily brought into litigation in state court can waive its immunity by removing the case to federal court, New Jersey courts have never declared that the state may waive its immunity from suit in state court through litigation conduct. The Court also found that the state police could not be estopped from raising its sovereign immunity defense, because it never misrepresented its status as a state actor, nor affirmatively represented that it planned to waive immunity simply by defending the claims against it.

The Court found that the employee’s NJLAD claim for failure to accommodate, under which the state police did not have sovereign immunity, was improperly dismissed. The trial court had found that a prima facie case under the two statutes were identical, yet separated the two claims when the state police moved for a directed verdict. The trial court then applied CEPA’s waiver provision to both the NJLAD retaliation and failure to accommodate claims. However, the CEPA waiver provision applied only to those causes of action requiring a finding of retaliatory conduct that would be actionable under CEPA. The CEPA waiver did not apply to the NJLAD claim, which was premised on different facts.

The NJLAD failure-to-accommodate claim was identical to the ADA claim. Because there was sufficient evidence to support Royster’s ADA claim, the Court found that the NJLAD claim should have survived the directed verdict motion. Although the employee had acquiesced to dismissal of the NJLAD claim, which was not precluded by sovereign immunity, the court could not ignore that the dismissal was mistaken. The state police’s belated assertion of sovereign immunity was not made in bad faith, but the interests of justice required reinstatement of the NJLAD failure to accommodate claim. Because the jury awarded $500,000 for the ADA failure to accommodate claim, the court found that it would have given the same award for the parallel NJLAD claim had it not been dismissed, and so it remanded to the trial court to mold the jury’s ADA award into an NJLAD award.

This case is surprising in that the court allowed a defendant to assert a sovereign immunity defense after the jury returned a verdict. We are pleased that that the Court found a way to uphold the jury’s verdict by fairly molding the verdict. Justice appears to have been served!

Court Upholds Firing of Muslim Prison Guard Who Wore Muslim Headscarf

Despite the finding of a prima facie case of race discrimination, a New Jersey appeals court has upheld the firing of a Muslim corrections officer who refused to remove her headscarf on the job.

Linda Tisby began working at the Camden County Correctional Facility in 2002 but became a Muslim in 2015 and one day reported to work wearing the khimar, or headscarf. She refused to remove it, was sent home and recommended for disciplinary charges. After continuing to report to work wearing the khimar, the Correctional Facility dismissed Tisby on May 11, 2015.

Tisby filed two separate suits against Camden County and the Camden County Correctional Facility. The first, filed on June 12, 2015, sought damages under the NJ Law Against Discrimination (“NJLAD”) and alleged that the jail had permitted other women to work with head coverings, including Muslim women and those undergoing chemotherapy. A month later, she filed a second suit, seeking reinstatement and back pay and asserting violations of the NJLAD.

The trial court dismissed the second complaint on August 7, 2015, finding that the jail would face an undue hardship if it accommodated Tisby’s request to wear the headscarf. That is, the scarf could be used to choke someone or to smuggle contraband into the jail. Additionally, the scarf undermined the facility’s goal of presenting a unified, neutral and unbiased force to the public and inmates. A different judge dismissed the first complaint was on August 21, 2015, based on the entire-controversy doctrine (all related claims to a particular controversy should be presented in one forum).

On appeal, the court applied the burden-shifting methodology from the 1973 U.S. Supreme Court ruling in McDonnell Douglas v. Green. The panel found that the plaintiff established a prima facie case of discrimination and the defendant articulated a legitimate, nondiscriminatory reason for its action. The court did not find that the employer’s reasons were pretextural. Ultimately, the appeals court found that the right of Ms. Tisby to wear Muslim headgear at work in a correctional facility was outweighed by safety concerns and any accommodation to Ms. Tisby in this context would impose a hardship on defendants.

NJ Supreme Court Case Makes it More Difficult to Reduce Jury Emotional Distress Damage Award

In a recent employment discrimination case, Cuevas v. Wentworth Group, the NJ Supreme Court upheld the jury’s award of emotional distress damages to the Plaintiffs, Ramon and Jeffrey Cuevas, two brothers who suffered derogatory and humiliating racial remarks and discrimination at work. The brothers are Hispanic. Wentworth fired the brothers shortly after Jeffrey complained about the harassment.

At the trial court level, the jury awarded over $1 million in lost wages, $800,000 in emotional distress damages and $52,500 in punitive damages to Ramon. It awarded Jeffrey $150,000 in lost wages, $600,000 in emotional distress damages and $32,500 in punitive damages. Both the trial court and the Appellate Division denied defendants’ request for a remittitur (reduction) of the emotional distress damages.

On certification, the New Jersey Supreme Court upheld the jury’s emotional distress damages award to the Cuevas brothers. The Court held that a judge should not rely on personal knowledge of other verdicts or comparative-verdict methodology when deciding a remittitur motion to reduce a damage award because each case is unique. Moreover, the Court held that a judge should only consider the record itself, in order to maintain the deferential standard of review of a jury’s award of damages.

In its opinion, the Court reiterated that the applicable legal standard is whether the jury’s award was so “grossly excessive” that it “shocks the judicial conscience.” It held that a court should reduce the amount of damages awarded by a jury only in a rare case in which it is glaring and obvious from the record that it was “grossly excessive.”

This case is notable because the Court affirmed an extremely high emotional distress damages award without obtaining any expert testimony from a treating psychotherapist or an expert witness regarding the emotional distress suffered by the Plaintiffs. It held that courts should be reluctant to interfere with a jury’s decision about pain and suffering damages.

Written Warning Could be an Adverse Employment Action under the NJLAD

The New Jersey Appellate Division recently held that a written warning, if part of a system of progressive discipline, may constitute an adverse employment action under the New Jersey Law Against Discrimination (“NJLAD”), which in turn could mean an employer could be held liable for discriminatory or retaliatory actions.

In Prager v. Joyce Honda, Inc., No. A-3691-14T3, ____N.J. Super _____ (App. Div. August 22, 2016), Plaintiff was a former receptionist who was inappropriately touched by a long-standing, valued customer of the Joyce Honda car dealership. Plaintiff filed a municipal court complaint against the customer. Plaintiff claimed that she thereafter became isolated by her coworkers and, about a week after she filed the report, received two written warnings for leaving early without permission. When management presented Plaintiff with the written warnings, she became upset, stating that the warnings were false and issued in retaliation for pressing charges against the customer. The Plaintiff claimed that she had left early many times before without incident and that her high level of anxiety was causing her to throw up before work. In response, management offered to rescind the warnings and suggested that if work was making her feel sick; it would be in her best interest to resign. Plaintiff resigned the next day.

Plaintiff then filed a lawsuit against Joyce Honda, claiming retaliation under the NJLAD. The trial court dismissed, holding that Plaintiff’s municipal court complaint against the customer was not protected activity under the NJLAD. On appeal the Appellate Division affirmed on different, but notable grounds. The Appellate Division found that the Plaintiff’s municipal court complaint was protected activity. Nevertheless, her retaliation claim failed because she could not demonstrate that the two written warnings constituted an adverse employment action. The court used an objective standard to evaluate whether the warnings were an adverse employment action: whether a reasonable person could have found them to be materially adverse. It noted the analysis was case specific, and explained that a written warning could be deemed a materially adverse employment action, such as in the case where a formal system of progressive discipline exists and is enforced. In the Prager case the Appellate Division ruled that the written warnings Plaintiff received were not an adverse employment action since it was not certain that Plaintiff would receive future discipline (Plaintiff resigned the next day and the employer offered to rescind the warnings).

Prior to Prager New Jersey courts generally found that written warnings, absent consequential discipline, did not constitute adverse employment actions. This case makes it clear that, if the warnings set forth even future mandatory progressive discipline, such warnings may be considered an adverse employment action for purposes of imposing liability under the NJLAD.