New Jersey Employment Lawyer Blog

Title VII of the Civil Rights Act does not protect employees from discrimination based on sexual orientation. But guess what? According to the Third Circuit Court of Appeals, which covers employment discrimination claims in the State of New Jersey, the law does cover gender stereotyping because of an individual's effeminacy. An effeminate gay man who claimed he was discriminated against on the basis that he did not conform to a typical male stereotype at his workplace will now have his case heard by a jury.

In September 2007, a Federal Judge dismissed a male employee's claims. The Judge stated that the behavior the employee complained of was "reprehensible,", but he was not discriminated because of his gender but because of his sexual preference.
The United States Court of Appeals reversed and wrote that it is for a jury to decide if the employee was discriminated against "because of sex." This case is now binding on claims brought in the State of New Jersey under federal employment laws.

The Court of Appeals relied on a 1989 case in which the Supreme Court held that sex discrimination laws protect women who fail to conform to a traditionally feminine demeanor and appearance.

The lawyer representing the employee in this case alleged that he was often called "Rosebud" and "Princess". The employment lawyer also alleged that other co-workers left personal lubricant on his workstation. The employment lawyer also alleged that the employee was harassed for walking effeminately and talking with a high voice.
The Appellate court wrote that it is possible that the harassment the employee alleges was because of his sexual orientation, not his effeminacy . . nevertheless, this does not vitiate the possibility that the employee was also harassed for his failure to conform to gender stereotypes."

The employment lawyer that argued the employee's case was quoted as stating that in the past district courts often dismissed these types of complaint at summary judgment.
The case will now go back to the district court and a trial date will be set.

A New Jersey employment lawyer has filed has filed a whistleblower lawsuit on behalf of an Edison Township police officer after being suspended for complaining of what he perceived to be discriminatory conduct by his superior, a sergeant in the police department. The lawsuit alleges that the officer responded to a motor vehicle accident. According to the lawsuit, when the officer called for assistance, he claims the sergeant stated that "there's dirty (expletive) Indians in the car, and I'm not going in there." The officer was suspended after he complained about the comments made by the sergeant. The police department claimed that the officer's action were insubordinate. Ultimately, the insubordination charges were dismissed because they were not filed within the proper window of time.

New Jersey employment laws protect employees that complain of conduct they believe in good faith to be illegal. The Conscientious Employee Protection Act (CEPA) permits employees to sue their employers for adverse employment actions taken in retaliation for blowing the whistle on conduct which they believe is illegal.

The lawyer for the officer also filed an age discrimination claim under the New Jersey Law Against Discrimination. The lawyer claims that the officer was targeted because of his age.

Senator Ted Kennedy has passed away at the age of 77. Senator Kennedy, a lawyer, was a huge proponent of anti-discrimination and employment laws. His achievements in passing employing laws have had a huge impact on employers and employees, as well as labor and employment lawyers advocating and defending employment lawsuits.

He was one of the chief sponsors of the Americans with Disabilities Act. Senator Kennedy was also the chief sponsor the largest reform of the nation's pension system since 1974, the Pension Reform Act of 2006. He was also the chief Senate sponsor for an act that would prohibit employers from discriminating against employees and applicants based on their sexual orientation and gender identity. The Federal law does not offer such protection. The New Jersey Law Against Discrimination does offer such protection. In addition, Senator Kennedy championed signing into law of the Lilly Ledbetter Fair Pay Act. This bill was sponsored last year and extends the time period in which employees can pursue disparate pay claims under anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

In a previous blog I wrote about the United States Supreme Court ruling that employees filing age discrimination cases under the Federal Age Discrimination in Employment Act (ADEA) must now show that age was the determinative factor in deciding to discharge the employee. The Supreme Court in Gross v. FBL Financial Services, held that an employee must prove their age "was the "but-for' cause of the challenged adverse employment action."

It looks like this standard has the potential of being reversed by legislation. Sen. Patrick Leahy, D-Vt., said he was troubled by the decision. In addition, Rep. George Miller, D-Calif., the chairman of the House Education and Labor Committee, said in July that he will hold a hearing to determine how the Supreme Court employment law decision impacts workers' protections against age discrimination and other forms of workplace discrimination.

I recently conducted a Westlaw search to see if there are any New Jersey employment law decisions which interpret the new standard. As of posting this blog I could not find a single case that applied the standard to New Jersey's employment laws. It is, of course, only a matter of time before a New Jersey employment lawyer tries to persuade the New Jersey courts to apply the new federal standard to New Jersey's Law Against Discrimination. Until such time, employment lawyers will have to track Congress' action on reversing this standard through legislation.

Is there a perception of gender bias in the New Jersey courts? According to a recent survey, the answer is yes if a female lawyer responds to the survey. The Supreme Court Committee on Women in the Courts' recently issued a report. The report is based on a 2007 survey. The survey drew responses from 851 lawyers in the State of New Jersey. The report found a majority of female and minority attorneys believe that lawyers of their own sex or gender had been treated unfairly. However, this feeling was not shared by most of the lawyers surveyed.

New Jersey has some of the toughest discrimination laws in the country. In fact, our State Supreme Court has referred to discrimination as the equivalent of cancer - pretty compelling. I suspect the Supreme Court will take this study seriously. New Jersey has some great lawyers and it would be a shame to see this perception continue. Every lawyer is entitled to the same treatment regardless of gender, race, religion, disability and all of the other protected classifications under the New Jersey Law Against Discrimination.

The Equal Employment Opportunity Commission (EEOC) has hit AT&T with an age discrimination lawsuit. The EEOC is the federal agency charged with enforcing federal labor and employment laws.

According to the complaint filed in the United States District Court, District of New York by lawyers for the EEOC, AT&T denied reemployment to older workers that previously opted to retire under the company's Voluntary Retirement Incentive Program.

The EEOC claims that a disproportionate number of older workers did not have the same opportunity to apply for reemployment as the other workers, thus resulting in age discrimination in violation of the Age Discrimination in Employment Act.

AT&T has office in Basking Ridge, New Jersey and is also subject to New Jersey employment laws, such as the New Jersey Law Against Discrimination, which also prohibits age discrimination in employment.

A question that comes up quite frequently in New Jersey employment law is whether an employee that quits their job can later sue the employer for wrongful discharge. Most employees are under the impression that they can sue their employer for wrongful discharge, even if they resign. On the defense side, most employers fear they can be subject to a wrongful discharge case if the employee voluntarily leaves employment. What is the answer?

The answer is that most of time the employee will have an extremely weak case for wrongful discharge against their former employer if they resign employment. New Jersey employment law recognizes a theory which is known as constructive discharge. This is a theory which allows an employee to sue his or her former employer for wrongful discharge, even though the employee resigns. In order for an employee to prevail under this theory, the employee will have to show that he left because the work environment was so intolerable that no reasonable person would stay employed and endure the work conditions. This is a fairly high burden to meet for the employee under New Jersey's employment laws.

It is important to remember that harassment cases may be brought irrespective of the employee's decision to resign employment. However, an employee's decision to resign may affect his damages claim at the time of trial, unless he can show that he was constructively discharged.

Employees in New Jersey should always contact a New Jersey employment lawyer before making the decision to resign employment. Likewise, employers should always contact an employment lawyer when an employee indicates that he may intend to resign because of the work conditions.

On August 17, 2009, the New Jersey Division on Civil Rights issued a statement that it had made a finding of probable cause for discrimination against the Bank of New York, which an office in Hudson County dealing with securities and asset management. The company was charged with race and sexual orientation discriminating by a former employee. The Division's finding of probable cause also applies to a claim for retaliation because the employee was terminated after complaining of employment discrimination

The New Jersey Division on Civil Rights has the authority to investigate claims of employment discrimination under the New Jersey Law Against Discrimination, including claims of discrimination based on an employee's sexual orientation or race, as alleged in this case.

The New Jersey Law Against Discrimination also prohibits an employer from making an adverse employment action, such as termination, after an individual makes a complaint of discrimination in good faith.

In New Jersey, employees make bring claims of employment discrimination against their employers by filing a claim with the New Jersey Division on Civil Rights. Alternatively, an employee may hire a New Jersey employment lawyer to file a civil lawsuit against their employer in the Superior Court of New Jersey.

In Josifovich v. Secure Computing Corp. Slip Copy, 2009 WL 2390611 D.N.J., 2009, July 31, 2009 the New Jersey District Court ruled that a settlement between parties to an employment discrimination case brought under the New Jersey Law Against Discrimination that did no address tax liability is taxable to the Plaintiff for front and back pay. The lawyers in the case reached a settlement agreement after numerous hours of negotiation but never discussed the issue of withholding taxes. The court stepped in and made the call by ruling that the settlement was taxable to the plaintiff similar to wages for both front and back pay.

New Jersey employment lawyers can learn from this case that it may be wise to advise a client to seek tax advice before entering into a settlement agreement. Numerous articles have been written about the taxability of employment discriminatin cases which has been the subject of much litigation.

The Manalapan Chief of Police, Stuart C. Brown, represented by a New Jersey employment lawyer, has sued the Township for age discrimination under the New Jersey Law Against Discrimination. The Chief of Police alleges that municipal officials have tried to force Brown into early retirement and further states that Manalapan, principally through the township committeewoman and the township administrator, embarked on a prolonged and continual pattern of harassment of Chief Brown."

The complaint further states that from the time the committeewoman "began her term on the Township Committee (in January 2006), there has been a longstanding, active policy of removing the existing department heads, many of whom had won awards in their positions and all of whom were recognized as qualified, top quality performers. In every case, they were members of the protected class of aged employees, and in almost every case, they were replaced by younger people."

Brown's complaint also states that several of the former department heads/employees "were tenured and could not be fired. Hence, the defendants established a pattern of harassment making it impossible for them to perform their jobs, causing emotional distress leading to physical illness and forcing them to vacate their positions as a means of bypassing tenure protections."

The complaint also states that "Defendants' conduct is severe and pervasive enough to make a reasonable person of similar age to (Brown) believe that the conditions of employment have been altered and that the working environment is hostile and abusive." "Additionally, defendants' conduct unreasonably interfered with (Brown's) work performance. Defendants harassed (Brown) for no just cause, and solely as the result of the age of (Brown) and, in particular, to force him to retire early as they had so many other aged employees."

New Jersey's Law Against Discrimination prohibits discrimination on the basis of age. Whether the chief will prevail or not remains to be seen. Under a hostile work environment analysis, as modified to fit an age animus claim, the chief in this case would have to establish that: (1) the complained of conduct would not have occurred but for his age; (2) the conduct was severe or pervasive; (3) enough to make a reasonable older aged person believe that; (4) the conditions of employment have been altered and the working environment is hostile or abusive.

A New Jersey employment lawyer that represented a former Millville police officer recently settled a lawsuit against the municipality for $415,000.00.

The officer alleged harassment based on his sexual orientation. New Jersey employment lawyers can file discrimination cases based on an employee's sexual orientation. The New Jersey Law Against Discrimination prohibits discrimination against an individual on the basis of their sexual orientation. The law allows individuals to seek damages against their employers, which may include a claim for punitive damages, as well as damages for pain and suffering and emotional distress.