New Jersey Employment Lawyer Blog

Employment Lawyers representing plaintiffs were dealt a set back by New Jersey's Appellate Division this week when the Court took a rare turn away from its usual liberal stance on discrimination cases. The New Jersey Appellate Division recently held that there is no cause of action under the New Jersey Law Against Discrimination for discrimination in pay and compensation benefits when the discrimination is based on decisions that occurred outside the LAD two-year statute of limitations. The Court stated that the fact that the impact of the discriminatory decision-making continued the pay disparity into the two-year period before the complaint was filed is not relevant. The New Jersey Appellate Division followed the principles and guidance of the federal Title VII jurisprudence, and the United States Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., notwithstanding Congress' subsequent adoption of the Lily Ledbetter Fair Pay Act of 2009. The Appellate Division stated that the Legislature, not the court, must amend the LAD to achieve the result Congress adopted.

Employment lawyers in New Jersey will be following this case closely. The New Jersey Supreme Court has agreed to hear an appeal by a former Curtiss-Wright Corp. employee whose $10.6 million sex-discrimination judgment was reversed because she shared confidential company records with her lawyer. The issue before the court is whether a worker's acquiring of company information in the normal course of her job, and communicating it to her employment attorney in her discrimination case, is protected activity for which retaliation is actionable.

Through her human-resources position, plaintiff Joyce Quinlan copied more than 1,800 pages of the company's personnel files, including salary records. She handed the files over to her lawyer in support of her suit. The trial judge instructed the jury that it was permissible for the lawyer to use the confidential company documents and that the company could not fire the plaintiff on that basis. The Appellate Division reversed. The New Jersey Appellate Division found that the trial court judge improperly distinguished between copying the documents and using them in litigation.

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.

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.

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.

A plaintiff was awarded close to 500K by a federal judge becuase she was rejected from a position with the Library of Congress while undergoing a gender change from a man to a woman.

The plaintiff, Diane Schroer, applied for the position of terrorism analyst job. At the time she applied she was still a man. He was offered the job. However, the offer was pulled after he made public the fact that he was changing his gender.

The ruling was for $491,190, which included payment for backpay. The employment lawyer for the Library of Congress, and the employment lawyer for the Justice Department, argued that discrimination based on transsexuality was not illegal sex discrimination under the language of the Civil Rights Act.

This should be an interesting case to follow on appeal to see if the gender identity claim holds up. Many employment lawyers in New Jersey are of the opinion that the Title VII Civil Rights Act does not protect employees that claim gender identity discrimination. In New Jersey, an employment lawyer can allege gender identity discrimination claims on behalf of the client under the New Jersey Law Against Discrimination.

The Third Circuit Court of Appeals reiterated the standard for proving gender discrimination under Title VII of the 1964 Civil Rights Act and held that a third year resident's claim for not promoting her to the next level of resident training failed as a matter of law. New Jersey employment lawyers use the same standards when arguing gender discrimination cases in the New Jersey courts under the New Jersey Law Against Discrimination.

In Brown v. Hamot Medical Center, United States Court of Appeals, Third Circuit (No. 08-1393), the plaintiff was a third-year resident in the Hamot' s Orthopaedic Residency Program when she was notified that she would not be promoted to the next level of resident training because of her academic and clinical deficiencies. The plaintiff pointed out that only one other woman had participated in the Orthopaedics Residency Program at Hamot, noting also that woman made up only 2.6 percent of all orthopaedics residents nationally in 2002. Hamot countered the plaintiff's case with objective evidence of serious academic and clinical problems.

The Third Circuit utilized the same framework that is used in New Jersey employment law when deciding whether a plaintiff can move forward with a gender discrimination complaint. According to the McDonnell Douglas framework utilized under federal and New Jersey employment laws, an employee seeking to establish a gender discrimination claim has the initial burden of establishing a prima facie case by showing: (1) that she was a member of a protected class, (2) that she was qualified for the job, and (3) another person, not in the protected class, was treated more favorably. If the employee succeeds in stating a prima facie case, the burden shifts to the employer to state a legitimate, nondiscriminatory reason for its action. Then, the employee may respond by showing that the employer's proffered reason was actually a pretext for gender discrimination.

Here, the trial court found that she was not qualified to advance to the fourth year of residency. The plaintiff contended that even if she was not qualified it is because she was set up to fail. The Third Circuit recognized that that when an employer discriminatorily denies training and support, the employer may not then disfavor the plaintiff because her performance is affected by the lack of opportunity. Suffice it to say the Third Circuit agreed with the District Court that the plaintiff had not shown that any similarly situated male resident was treated more favorably than she.