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The LGBTQ community has been scoring civil rights victories nationwide over the past few years, including the seminal Obergefell v. Hodges, 576 U.S. 135 (2015) decision that legalized gay marriage, and the repeal of the controversial HB-2 bill in North Carolina, commonly referred to as the “Bathroom Bill”, requiring all citizens to use the bathrooms designated for the gender assigned at birth. The latest victory comes from New Jersey, where Governor Phil Murphy signed into law 3 bills expanding rights for the New Jersey transgender community.

The first two bills (2018 Bill Text NJ S.B. 478 & 2018 Bill Text NJ S.B. 493) allow for gender assignment to be changed on birth certificates without proof of gender reassignment surgery.  For individuals who wish to change their gender on their birth certificate, the law now requires,

(1) a certified copy of an order from a court of competent jurisdiction which indicates that the name of the person has been changed, if the person has changed his or her name; and (2) a [medical certificate from] form provided by the State registrar and completed by the [person’s licensed [physician] health care provider] person, or the person’s guardian, which [indicates] [the sex of the person has been changed by surgical procedure] [that the person has undergone clinically appropriate treatment for the purpose of gender transition, based on contemporary medical standards, or that the person has an intersex condition.]

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There is no doubting increased social media use around the world means people are more connected to each other today than ever before. All it takes is a quick Facebook search to locate a person’s whereabouts, activities, and interactions with colleagues, friends, and family. This expanded access to information has led many employers to monitor and regulate the words and conduct of their employees outside of work, and at times, to terminate a worker’s employment for what the employer views is unsavory, disparaging, or unflattering behaviors. Most recently, actress-comedienne Roseanne Barr lost her job and had her self-named TV series cancelled because she made a racially offensive tweet about Valerie Jarrett, a former senior aide to former President Obama. While this may be an extreme example, it begs the question, “To what extent can an employer terminate an employee for their behavior outside of the workplace, specifically, for their social media use?”  The answer is not entirely clear.

Generally, employees in New Jersey are considered at-will, meaning their employer can terminate a worker’s employment for any reason or no reason, including social media use, so long as the termination does not violate law. However, the National Labor Relations Board (“NLRB”) has determined that certain social media use is considered “protected concerted activity” and termination for that type of social media use to be a violation of federal law.[1] The NLRB is an independent federal agency created by Congress to protect employees’ rights to unionize, and also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. https://www.nlrb.gov.

In Meyers II, 21 NLRB 882, 887 (1986), the NLRB defined concerted activity as, “individual employees that seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” In NLRB v. Karl Knauz Motors, Inc., 358 NLRB 1754, 1763 (2012), an Administrative Law Judge concluded that a BMW car salesperson was fired for posting pictures on Facebook related to an accident that took place at a sister dealership, rather than because of pictures posted by him to criticize the food and drink served at a luxury car event attended by that many other salespeople. The NLRB stated the photos of the accident were not protected activity and placed the dealership in a bad light, while the photos used to criticize the food at an event not hosted or sponsored by the employer were examples of protected concerted activities.

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The LGBTQ community’s long battle to legalize same-sex marriages finally ended on June 26, 2015 when the Supreme Court of the United States (SCOTUS) delivered its opinion in Obergefell v. Hodges, 576 U.S. 135 (2015). This seminal decision resulted in same-sex couples planning wedding ceremonies and receptions. In turn, Obergefell raised the issue of whether a cake baker could refuse to create a cake for a same-sex wedding based on the baker’s religious beliefs. Although this issue was recently addressed by SCOTUS in Masterpiece Cake Shop, LTD. v. Colorado Civil Rights Comm’n, 2018 U.S. LEXIS 3386 (2018) (Masterpiece), it was left largely unsettled.

In Masterpiece, SCOTUS ruled in favor of Jack Phillips (Phillips), a Christian cake shop owner in Colorado who refused to create a wedding cake for a same-sex couple in 2012 because he claimed to do so violated his religious beliefs. This case presented two significant constitutional concerns to the Court, specifically, whether Phillips constitutional rights to freedom of speech and free exercise of religions would be infringed if forced to contract with and create wedding cakes for same-sex couples. While the Court did give passing consideration to these issues, it focused its analytical attentions to its view that the Colorado Civil Rights Commission’s (the “Commission”) handling of the Phillips’ case was biased because of the Commission’s belief that religion had historically played a role in fostering discriminatory behavior referencing religion’s role in slavery and the Holocaust. In doing so, SCOTUS reversed the Colorado Court of Appeals’ affirmation of the Commission’s decision in favor of the same-sex couple who wanted Philips to bake a wedding cake for them.

In rendering its decision in favor of baker Phillips SCOTUS found significant: a) Phillips’ refusal to bake the couple their cake occurred in 2012, before Obergefell was decided, and before the state of Colorado recognized same-sex marriage; b) the Commission in 2012 had a practice of finding no violations of the Colorado Anti-Discrimination Act in cases where the bakers had refused to create cakes with derogatory messages that demeaned same-sex couples; and c) Commissioners presiding over the case below called Phillips’ religious justification for discrimination a despicable piece of rhetoric and compared his argument to those that Nazis made to justify the Holocaust. This showed the Court that the Colorado Civil Rights Commission violated the free exercise clause of the first amendment which required the Commission to approach Phillips’ beliefs with neutrality and tolerance.

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The issue of whether an employee has suffered a requisite “adverse employment action” under our state’s whistleblower law when transferred out of his longstanding job into another after he blows the whistle on his employer’s violations of law or public policy, was recently addressed by the New Jersey Appellate Division in Jeffrey Scozzafava v. Somerset County Prosecutor’s Office, 2018 N.J. Super. LEXIS 1125, (App. Div. decided May 14, 2018). There, the appellate court significantly expanded employee protections within the meaning of New Jersey’s Conscientious Employee Protection Act (CEPA) by providing clarity on the issue of lateral transfers.

In Scozzafava, the Appellate Division reversed a trial court’s decision dismissing Detective Jeffrey Scozzafava’s complaint against his employer. The Court held that Detective Scozzafava’s transfer from his long-time service in the Somerset County Prosecutor’s Office’s forensic unit to the Office’s fugitive squad, constituted an adverse employment action by the employer stemming from Scozzafava’s whistle-blowing conduct of filing complaints against the forensic unit and supervisor for improper and deficient evidence collection and casework.

To establish a New Jersey whistleblower claim, a plaintiff must satisfy four elements:

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Having a new baby is an exciting time of life but can bring many anxieties regarding the logistics of coming back to work after delivery. New mothers coming back to work after giving birth are faced with a multitude of questions, concerns, and uncertainties, including how they will continue breastfeeding their infant. Although a very personal parenting and health decision, the medical benefits of breastfeeding have been shown to cause fewer illnesses in children, reduced risk of asthma or allergies.  After new moms decide they want to continue the breastfeeding relationship with their babies after going back to work, they may wonder what their rights are to do so in the workplace.

For employees considered “nonexempt” under the Fair Labor Standards Act (“FLSA”), meaning they are entitled to earn overtime pay, federal law requires a break time for mothers to express milk, and a location shielded from view other than a bathroom. Since the Affordable Care Act (“ACA”) was signed into law on March 23, 2010, section 7 of the FLSA was amended to require employers provide reasonable break time for an employee to express breast milk for one year after childbirth.  See 29 C.F.R. 207(r).  This law is also known as the “Break Time for Nursing Mothers Law.” Employers are also required to provide a place other than a bathroom that is shielded from view and free from intrusion from coworkers and the public.  All employers are subject to the FLSA break requirement unless the employer can show that (1) they have 50 or fewer employees, and (2) compliance would pose an undue hardship.

In New Jersey breastfeeding is a protected act under the New Jersey Law Against Discrimination (“LAD”) (N.J.S.A. 10:5-2 et. seq.). On January 8, 2018, the LAD was amended to include all breastfeeding mothers (with no one-year time limitation as in the FLSA).  It is now illegal for employers to refuse to hire, take adverse employment action and discriminate against an employee because of breastfeeding. Employers must also make available to the employee reasonable accommodations including reasonable break time each day and a suitable private location other than a toilet stall, in close proximity to the work area to allow the employee to express milk. N.J.S.A. 10:5-2(s). There is an exception if the employer can demonstrate that providing the accommodation would be an undue hardship on their business operations. Courts will examine the overall size of the business, number of employees, number and type of facilities, budget, type of operations, structure of workforce, cost of the accommodation needed, and the essential requirements of the job.  Id.

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On May 2, 2018, New Jersey Governor Phil Murphy signed into law the Paid Sick Leave Act requiring all public and private employers in the State of New Jersey, regardless of their size, to offer paid sick leave. The law is scheduled to go into effect on October 29, 2018.

Under the Paid Sick Leave Act, an employee shall be permitted to paid sick leave as follows:

(a) Diagnosis, care, treatment, recovery and/or preventive care for the employee’s own mental or physical illness or injury or the employee’s family member’s mental or physical illness or injury;

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After overwhelming support and passage through the New Jersey Senate and Assembly, New Jersey Governor Phil Murphy signed into law a historic and sweeping equal pay legislation that is being deemed the strongest equal pay law in America.  The new law affords equal pay protections to all minorities and protected classes, not just women.

 
Although New Jersey already has a law prohibiting discrimination in pay based on sex under N.J.S.A. 34:11-56.2, the new Equal Pay Act goes even further and extends to equal pay protections to all protected classifications of sex, race/ color, national origin/ancestry, religion/creed, disability, age, pregnancy, marital status, sexual orientation, gender identity,  N.J.S.A. 10:5-12(a).  The Equal Pay Act also has a six (6) year statute of limitations, where LAD only has a two (2) year statute of limitations. Under the new law a discriminatory compensation decision or other employment practice that is unlawful under the New Jersey Law Against Discrimination (LAD) occurs each time that compensation is paid in furtherance of that discriminatory decision or practice – effectively making each paycheck another instance of discrimination.

 
When the Equal Pay Act takes effect on July 1, 2018, it will be an unlawful employment practice for employers to pay less in wages, benefits, or compensation to members of a protected class for “substantially similar work, when viewed as a composite of skill, effort and responsibility” as those not in a protected class. In other words, if an employer pays one employee more than another who falls under a protected classification, the employer will have to show permissible exceptions for the pay disparities.  Such exceptions include a seniority system, a merit system or a bona fide factor other than the characteristics of the members of the protected class.  “Bona fide factors” can include training, education, experience, performance, productivity, and skill sets.

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Discrimination based on age is as pervasive a problem for the American workforce as it is tricky to prove. Employers’ efforts to avoid litigation have driven the development of a multitude of sneaky strategies to avoid liability under federal and state anti-discrimination laws. In fact, one of the largest technology firms in the world – IBM Corp. – recently demonstrated some of these tactics when they pushed out experienced, older employees to make way for younger, less-experienced hires. In just the last five years, IBM has eliminated 20,000 American employees aged 40 and over. This represents a whopping 60 percent of the company’s total job cuts during that time. A confidential company document obtained by the press explained explicitly that these cuts were made in order to achieve the “correct seniority mix” of its employees. To achieve this, IBM: (1) denied older workers information the company was legally required to disclose informing employees of their rights, (2) required workers to sign away their rights to have any complaints heard in a court of law, (3) used techniques in rating employee performance that punished those who had worked for IBM the longest, and (4) encouraged employees IBM had laid-off to seek another position within the company while simultaneously instructing managers not to hire them, and (5) laid-off older employees only to hire some back as independent contractors to do the same work at a greatly reduced paycheck, among other malevolent behaviors.

In New Jersey, an age discrimination claim is brought under the state’s Law Against Discrimination (NJLAD). The right to be free from discrimination is a civil right, and NJLAD covers employees and prospective employees from discrimination in the hiring and employment processes. A plaintiff bringing a claim of age discrimination will have to prove their prima facie case, consisting of four parts. First, the employee is a member of a protected class. In age discrimination, this typically means the employee is of an advanced age. However, the NJLAD also protects young workers from discrimination. Second, the employee was preforming their job at a level that met the employer’s legitimate expectations. Third, some adverse action was taken against the employee. This may include being fired, demoted, failing to promote, bad performance review or reference, among others. Finally, a plaintiff must have proof of causation. Meaning the adverse action was taken because of the employee’s age.

Causation can be established in many ways. The above example at IBM is an extreme one because it is unusual for there to be a paper trail, or even an explicit reference to age. Most age discrimination is more subtle. Employers have no doubt been warned not to call a worker “old” outright. Instead, comments made are somewhat nuanced and could be taken in more than one way. Consider “lacking in energy,” “not being up to date,” or “set in in his [or her] ways,” each of these phrases has been judged to be coded language or ‘dog whistles’ for ageism by New Jersey courts. Other ways to establish causation include: being replaced by someone substantially younger or older than oneself; suddenly receiving bad performance reviews after a long track record of good performance; the cutting of job duties or hours; attempts to force retirement such as threats to employee benefits or pension; and many more. Once the facts of the prima facie are shown to be plausible, the defendant gets the opportunity to offer a legitimate, non-discriminatory reason for the adverse employment action such as bad performance. The plaintiff may then bring proof that the reason given by the employer is actually pretext for discrimination, and not the true reason for the employer’s action.

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Officers from the Sacramento Police Department in California were investigating a report of vandalism when they encountered Stephon Clark, an unarmed 22-year-old African American male in the backyard of his grandmother’s house. For reasons which defy logic and basic humanity, Stephon died in a hail of 20 rounds fired from police revolvers, 8 of the bullets hit Stephon; 6 of the bullets tore into his back from behind. Whether the officers responsible for executing Stephon are ever indicted on criminal charges is uncertain, but most certainly his family will have the right to pursue civil rights violation claims against the Sacramento Police Department and its responsible officers. This is because the Constitution of the United States of America guarantees freedom from overreaching and abusive conduct by our police and other public employees of federal, state, and local government. These same rights exist here in New Jersey.

 I. Constitutional Guarantees Against Police Abuse

The 4th Amendment and 14th Amendments of the U.S. Constitution promise, respectively:

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     Most people are familiar with school yard bullies either because they were a bully, been bullied, and/or witnessed bullying. Bullying has always been prevalent in our schools such that some nostalgically view it as a ‘rite of passage.’  This old-school way of thinking has given away over time to a zero tolerance to bullying approach based on empirical studies evidencing the severe psychological damage caused to children by childhood bullying, as well as highly publicized cases where bullying had fatal consequences. In New Jersey, the suicide of Rutgers University student named Tyler Clementi served as a clarion call to do something about bullying in our schools.  Tyler was just 18 years old when he jumped from the George Washington Bridge to his death after being cyber-bullied by his roommate due to Tyler being a gay man. Statistics from the National Bullying Prevention Center show that about 20% of students report being bullied. However, that number increases drastically when a student has a ‘distinguishing characteristic,’ such as African American students (25%), those with a disability (35.3%), or identify as LGBTQ+ (74.1%). Bullying has been shown to lead to feelings of depression, anxiety and isolation, and victims of bullying are 2.6 times more likely to attempt suicide.

     In response to these stomach churning statistics, and stories like Tyler’s, New Jersey passed what has been deemed by many as the strongest anti-bullying law in the nation, The Anti-Bullying Bill of Rights Act, N.J.S.A., 18A:37-13 (“ABBRA”). ABBRA prohibits ‘Harassment, Intimidation and Bullying’ (HIB) in school, on school buses, at school sanctioned events, and even off school grounds in certain circumstances. The law also mandates procedures to investigate and report HIB, requires consequences and remedial responses where HIB has been found, and an appeals process for any decision. It creates at least three new roles within each school district to handle investigations, oversite, and HIB education. ABBRA gives a broad definition of what constitutes HIB. It can be a gesture, physical act or inaction (such as isolation). It can be communicated verbally; in writing; or electronically through telephone, cell phone, email or social networking websites. HIB can be ongoing or a single incident. For a school district to find HIB under ABBRA, the incident must be reasonably perceived or actually be motivated by some specific characteristic such as, race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability or by any other distinguishing characteristic. This can include characteristics such as obesity, scrawniness, or having lice – much broader protections than those provided by most civil rights laws.

     ABBRA provides a remedy for students who have been bullied due to a protected class characteristic (e.g., race/color, sex/gender, national origin/ancestry, religion/creed, disability, or sexual orientation), and the school has not taken adequate action to address the problem. ABBRA specifically permits a student, parent, guardian, or organization to file a complaint with the New Jersey Division of Civil Rights under the New Jersey Law Against Discrimination (NJLAD) against a school district that does not follow the ABBRA’s intensive procedure to deal with an accusation of HIB.