Sexual Harassment

VICTIMS OF WORKPLACE SEXUAL HARASSMENT OR ASSAULT MAY NO LONGER BE FORCED TO ARBITRATE THEIR CLAIMS

Published on: February 23, 2022 | by Mashel Law, L.L.C.

Recently the United States Senate amended the Federal Arbitration Act (the “FAA”) by passing S. 2342, known as “The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (the “Amendment”). The Amendment was passed with bipartisan approval and is expected to be signed into law by President Biden. Senate Judiciary Chair Dick Durbin (D-IL), stated the overall purpose of the Amendment:

“Forced arbitration clauses requires disputes to be decided in secret proceedings where the deck is often stacked in favor of corporations and repeat players. For Americans who have been sexually assaulted or harassed, forced arbitration clauses not only deny survivors a day in court, they require the misconduct be concealed from public view. And that allows the abusers to commit more abuse… The bill before us today would give survivors of sexual assault and harassment a choice to go to court instead of being forced into arbitration under the fine print of contracts signed before the dispute arose…”

Employers often require their workers to sign arbitration agreement where workers are forced to waive their right to sue in court when legal rights provided them by employment laws are violated in the workplace. Instead, the worker must resolve legal disputes through a private binding arbitration process. Arbitration requires parties to use a secretive confidential process where a privately person, typically a practicing lawyer or retired judge, is retained to serve as an arbitrator who functions like a judge outside of court. Critics of arbitration argue the process stacks the odds against the employee because professional arbitrators typically get repeat business from big business employers as compared to individual employee claimant who will typically use an arbitrator on only one occasion during their life. Common sense dictates that that if an arbitrator wants repeat business from an employer, then he or she must avoid hurting that same employer in their corporate pocketbook. According to an article published in May 2017 on the site populardemocracy.org, “Workers in mandatory arbitration win about one fifth of the time (about 21 percent), which is 59 percent as often as they win in federal courts and 38 percent as often as they win in state courts. In other words, employees are 1.7 times more likely to win in federal courts than in arbitration and 2.6 times more likely to win in state courts than in arbitration. Median damage awards in forced employment arbitration are $36,500, compared to $176,400 in federal court employment discrimination cases and $85,600 in state court non-civil rights cases.”

NEW YORK GOVERNOR ANDREW CUOMO’S RESIGNATION SERVES AS A CLEAR WARNING TO NEW JERSEY EMPLOYERS TO HOLD THEIR EMPLOYEES ACCOUNTABLE FOR ACTS OF SEXUAL HARASSMENT AND RETALIATION IN THE WORKPLACE

Published on: August 19, 2021 | by Mashel Law, L.L.C.

Sexual harassment is not typically about lust or the desire for sex. Rather, at its core its typically about exerting control and domination over subordinates in the workplace. Such is the case involving New York Governor Andrew Cuomo where numerous allegations of sexual harassment, intimidation, and retaliation culminated in his resignation from office following the release of a devastating 165-page investigation report by the New York State Attorney General’s Office. According to Dr. Louise Fitzgerald, a psychologist at the University of Illinois, only about 25 percent of cases of sexual harassment are botched seductions in which the man “is trying to get someone into bed.” According to Dr. Fitzgerald, “[i]n less than 5 percent of cases the harassment involves a bribe or threat for sex, where the man is saying, ‘If you do this for me, I’ll help you at work, and if you don’t, I’ll make things difficult for you.’” The rest she contends is the raw exertion of power and control. Cuomo’s fall from grace is a stark reminder of the critical need to eradicate all forms of sexual harassment from the workplace in accordance with New Jersey’s own Law Against Discrimination (“LAD”).

Under the LAD sexual harassment is a form of prohibited sex discrimination and presents itself in two forms: quid pro quo sexual harassment, where an employer attempts to make an employee’s submission to sexual demands a condition of his or her employment, and hostile work environment sexual harassment. All too often, employees are faced with implicit and explicit threats that they accede to sexual advances or face repercussions. Those who face such retaliatory action for standing up to their harassers and reporting the abusive behavior may find remedy through a separate cause of action under the LAD for retaliation.

Unlike proving a hostile work environment, which requires sexual harassing conduct so severe or pervasive a reasonable person would find the conditions of employment are altered and hostile or abusive, Lehman v. Toys R’ Us, 132 N.J. 587, 603-04 (1993), proving retaliation under the LAD only requires an employee show he or she (1) engaged in a protected activity known to the employer, (2) was thereafter subjected to an adverse employment action, and (3) a causal link exists between the two. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995). Protected activity includes opposing practices or acts that are unlawful under the LAD, i.e., complaining about or protesting the sexual harassment in the workplace. See N.J.S.A. 10:5-12(d). The employee must show that his or her original complaint – the one that triggered the retaliation – was made reasonably and in good faith. Carmona v. Resorts Int’l Hotel, Inc., 189 N.J. 354, 373 (2007). A retaliation claim under the LAD differs from the more traditional understanding of discrimination in that the underlying wrongful act of the employer pertains not to the complained-of discrimination, but to the unlawful treatment of the employee because that employee exercised a right protected by the LAD.

FOLLOWING THE AFTERMATH OF A HOTEL WORKER BEING SEXUALLY ASSAULTED BY A GUEST, NEW JERSEY BECOMES THE FIRST STATE TO REQUIRE HOTEL WORKERS BE PROVIDED WITH PANIC BUTTONS

Published on: June 28, 2019 | by Mashel Law, L.L.C.

Recognizing the unique vulnerability of hotel housekeeping and room service employees who often work alone while cleaning guests’ rooms, New Jersey Governor Phil Murphy signed into law this month a requirement that ensures hotels with over 100 guest rooms provide its employees with panic button devices to protect them when confronted with sexual assault and harassment situations. This new law was proposed in the aftermath of the sexual assault of a 51-year old room cleaner in Bally’s Hotel and Casino in 2018, which sparked outrage among similarly situated workers throughout the state who feared for their safety. In enacting this law, which will take effect in January 2020, New Jersey becomes the first state to require such protection for its employees.

The new law additionally recognizes that hotel employees who are often recent immigrants who speak little English and therefore may feel intimidated to report inappropriate or criminal conduct for fear of retaliation from their employers. The public policy goals of this legislation are in line with existing pro-employee rights laws in effect in our state such as the New Jersey Law Against Discrimination (LAD).

The LAD provides a significant level of protection to New Jersey workers by prohibiting employers from retaliating against employees for complaining about harassment or discrimination. N.J.S.A., 10:5-12(d). Under the LAD, it is an unlawful practice “for any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act.” Id. The panic button legislation adds an additional layer of protection for hotel service employees underscoring the fact that hotel employers had been failing to adequately address these workers’ safety concerns.

SEXUAL HARASSMENT AGAINST WOMEN WORKERS IN THE FOOD SERVICES INDUSTRY IS A SERIOUS AND PERVASIVE PROBLEM

Published on: May 31, 2019 | by Mashel Law, L.L.C.

A survey conducted this past January by the nonprofit Stop Street Harassment found that 81% of women had experienced some form of sexual harassment during their lifetime. Given this troubling statistic, it is not surprising that a recent series of twenty-five sexual harassment complaints have been filed with the U.S. Equal Employment Opportunity Commission (EEOC) against McDonald’s Corporation. These complaints allege the sexual harassment of female employees by male coworkers and managers. In response to these filings McDonald’s CEO released a statement on May 19, 2019, committing the company to “ensuring a harassment and bias-free workplace” for its employees. Although these words may read well on paper, it does little to explain why most of the claims of sexual harassment filed against the corporation also allege retaliation after the victims reported the sexual harassment to their supervisors.

By far claims of sexual harassment in the food service industry are not limited to McDonald’s. According to a report released by the National Women’s Law Center, the accommodations and food services industries are among the highest-ranking industries for total number of sexual harassment charges filed. The report also indicates that more than one in three women who filed such charges against their employers also alleged retaliation by their employers for doing so; a circumstance well familiar to a McDonald’s employee named Jamelia Fairley.

In September 2016, Jamelia Fairley began working for a McDonald’s store in Florida as a crew member. In her EEOC complaint filed against McDonald’s Corporation, Fairley alleges that she endured constant sexual jokes and remarks directed at her as well as at her young daughter who worked there as well. She also endured unwanted touching, groping, and physical contact at the workplace. Her complaint alleges that when she reported this harassment to her store manager, her work hours were reduced from about 25 hours per week to about 7-8 hours per week.

NJ APPELLATE COURT HOLDS PATTERN OF DISCRIMINATORY APPEARANCE-BASED PRACTICES MAY BE SUFFICIENT FOR SEXUAL HARASSMENT HOSTILE WORK ENVIRONMENT CLAIM IN ONGOING “BORGATA BABES” LAWSUIT

Published on: May 24, 2019 | by Mashel Law, L.L.C.

The Appellate Division of the Superior Court of New Jersey published an opinion on May 20, 2019, in which it reversed an Atlantic County decision dismissing a Law Against Discrimination (LAD) claim brought by a group of employees against the Borgata Casino, Hotel, and Spa in Atlantic City.

The employees, who were all hired to work as servers for the “Borgata Babes” program, allege that Borgata engaged in disparate treatment and sexual harassment, among other LAD violations, through its implementation of personal appearance standards which focus primarily on employees’ weights. Enforcement of these personal appearance standards was done through occasional weigh-ins, which ensured employees did not go above a set weight range during their employment. The standards were imposed on women who were pregnant as well as on women who were undergoing medical treatments that caused weight gain.

This week’s decision comes after a decade of litigation in which the claims were initially dismissed by the trial court. Schiavo v. Marina Dist. Dev. Co., LLC, 2013 N.J. Super. Unpub. LEXIS 2093. That initial dismissal was reversed in 2015 when the Appellate Division held that the trial judge erred in finding the record insufficient for a showing of a prima facie claim of sexual harassment hostile work environment discrimination. Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015).

Time’s Up For Sexual Harassers and Employers Who Enable Them

Published on: February 2, 2018 | by Mashel Law, L.L.C.

America is in the middle of a social reckoning. Brave women are standing up and telling their stories of sexual harassment, assault, or other abuses by men in positions of power through use of the hashtag, #MeToo. The #MeToo movement, focused primarily on sharing stories of abuse, evolved into a call for action and female empowerment aptly named #TimesUp. Although there has long been legal recourse found in our federal and state law for victims of sexual harassment in the workplace and/or victims of retaliation for reporting it, women today are being believed and vindicated on a larger scale than ever seen before. Here in New Jersey, our Law Against Discrimination (LAD) employees protects women and men alike from sexual harassment in the workplace. There are two kinds of sexual harassment: (1) quid pro quo, which is an agreement or an offer to receive a benefit (promotion, raise, continued employment, etc.) in exchange for the performance of sexual favors; or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances. Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). Any person who aids, abets, or otherwise assists in the harassment is in violation of the LAD. N.J.S.A. 10:5-12(e).

To prove the existence of a hostile work environment under the LAD, an employee must demonstrate that the conduct in question was unwelcome, that it occurred because of his or her sex, and that a reasonable person of the same sex would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. Id. However, a victim of harassment should be mindful that the LAD is not intended to be “a ‘general civility’ code” for conduct in the workplace.'” Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004) certif. denied, 183 N.J. 213 (2005). “‘[D]iscourtesy or rudeness should not be confused with [protected status-based] harassment.'” Ibid.

The LAD expressly protects workers from retaliation for having reported sexual harassment of themselves or coworkers. This includes retaliation in the form of a hostile work environment, demotion, failure to promote, transfer, cut in pay or benefits, unpaid suspension, wrongful discharge, or even “constructive discharge”. A constructive discharge occurs when an employer takes no official action, but creates a work environment so hostile and unbearable that a reasonable employee would have no choice but to resign.

Your Right To A Sexual Harassment Free Workplace

Published on: November 26, 2017 | by Mashel Law, L.L.C.

Under the federal Title VII of the Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination (LAD) workers are protected from sexual harassment in the workplace. There are two kinds of sexual harassment; (1) quid pro quo –agreement to perform sexual favors to receive a benefit (promotion, raise, continued employment, etc.); or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances.

Showing harassment through a hostile work environment requires a plaintiff to show: (1) objectively, a reasonable person would find such an environment hostile or abusive; (2) subjectively, the plaintiff perceives the environment as hostile or abusive; (3) the hostile environment is so severe or pervasive that someone can’t function or perform work properly; and (4) the hostile work environment was sexually motivated, in other words because of a characteristic protected by Title VII and LAD. There are two ways with which a workplace environment can be considered so hostile that someone can’t function or perform work properly; (1) a single incident occurred that was extraordinarily severe/egregious; or (2) a series of incidents was sufficiently continuous and concerning to have altered the conditions of the working environment.

If an employer has workplace policies in place to prevent and rectify harassment and the employee must take advantage of those procedures before bringing a harassment claim. This is known or referred to as the “Faragher-Ellerth defense”. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Such procedures can include having a Human Resources department which accepts and reviews harassment complaints, and if concluding that harassment took place, acts appropriately against those perpetrating the harassment. However, if an employee does complain about harassment, and management, concluding harassment took place, does not move to rectify, and prevent future harassment, then the employer can be held liable for the harassment which took place.