Articles Posted in Discrimination

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On September 19, 2016, the New Jersey Supreme Court upheld large emotional distress verdicts in a national origin discrimination case where the plaintiffs, Ramon and Jeffrey Cuevas, neither treated with a mental health professional, nor presented expert testimony at trial in support of their respective claims of emotional distress damages.  Ramon Cuevas v. Wentworth Group, 2016 N.J. LEXIS 891 (decided September 19, 2016). The Cuevas brothers filed a lawsuit under the New Jersey Law Against Discrimination against their former employer, the Wentworth Group, alleging they were routinely subject to racially disparaging and humiliating remarks by Wentworth executives; the Cuevas brothers also alleged they were the victims of retaliatory firings. The case was tried before a jury who awarded them $2.5 million in damages, including $800,000 to Ramon and $600,000 to Jeffrey for emotional distress damages. The defendants’ filed a post-trial motion with the court requesting a reduction of the emotional distress damages award because they felt they were unconscionably too high.  Defendants’ application to the court for reduction of a jury award is called remittitur. The trial court denied defendants’ motion finding that the award was not “shocking to the conscience.”   The Appellate Division affirmed the jury verdict and the trial judge’s denial of defendants’ remitter application.  The issue on appeal before the New Jersey Supreme Court was whether the trial court properly denied defendants’ application for remittitur.

In agreeing with the Appellate Division panel below, and relying on its prior 2004 decision in Tarr v. Ciasulli, 181 N.J. 70 (2004), the New Jersey Supreme Court in Cuevas rejected defendants’ argument that, in a LAD case, only nominal damages may compensate for emotional distress when there is no “independent corroborative proof or a showing of resulting physical or psychological symptoms.” In affirming the trial court’s decision to leave intact the jury’s emotional distress verdict, the Court emphasized that, “the Legislature intended victims of discrimination to obtain compensation for mental anguish, embarrassment, and the like, without limitation to severe emotional or physical ailments.” (emphasis in original) quoting Tarr, supra., at 81. In doing so, the Court in Cuevas noted that a number of courts have upheld high emotional-distress LAD awards in the absence of expert testimony from mental-health experts. See, e.g., Rendine v. Pantzer, 141 N.J. 292, 311-13 (1995) (affirming trial court’s denial of remittitur and upholding jury’s emotional-damages awards of $105,000 and $125,000 for two plaintiffs in LAD gender-discrimination wrongful-termination case); Quinlan v. 36 Curtiss-Wright Corp., 409 N.J. Super. 193, 217 (App. Div. 2009) (upholding emotional-distress damages of $187,128 in LAD gender discrimination failure-to-promote case), rev’d on other grounds, 204 N.J. 239 (2010); Lockley v. Turner, 344 N.J. Super. 1, 12-14 (App. Div. 2001) (upholding $750,000 emotional-damages award), aff’d in part and modified in part on other grounds, 177 N.J. 413 (2003).

The Court further made clear that trial judges should be reticent to invade the province of the jury in determining what is a fair and reasonable damages verdict for a victim of proven discrimination.  This is because a jury’s verdict is cloaked with a “presumption of correctness” quoting Baxter v. Fairmont Food Co., 74 N.J.  588, 598 (1977).  The Court went on to opine that, “The unique nature of each case and the suffering of each plaintiff is the reason why juries are told that, in fixing a monetary amount for emotional-distress damages, there is ‘no better yardstick for your guidance than your own impartial judgment and experience.’” Model Jury Charges (Civil) § 2.36, 34 “Past and Future Emotional Distress in an Employment Law Case” (2014).

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If your employer has a widely disseminated anti-harassment policy and you are a victim of harassment on the job, you must follow the victim reporting mechanism or procedures in the policy because failure to do so may bar you from recovering damages for the harassment you were forced to endure.  The New Jersey Supreme Court decision in Aguas v. State of New Jersey, 220 N.J. 494 (2015) is instructive on this point.  Ilda Aguas worked as a corrections officer for the New Jersey Department of Corrections (DOC). The DOC had in place a widely disseminated written anti-harassment policy which required employees to report sexual harassment or other forms of discrimination in writing.  Aguas claimed her supervisor and other officers were sexually harassing her.  However, Aguas only reported the harassing conduct verbally, not in writing.  Thereafter, Aguas filed a lawsuit against the DOC and her harassers alleging she was sexually harassed in violation of New Jersey’s Law Against Discrimination (LAD).  Ilda Aguas’ lawsuit was ultimately dismissed because she failed to follow the DOC’s anti-harassment policy and its requirement that victims of harassment make their complaints in writing.

In its decision affirming the dismissal of Ms. Aguas’ lawsuit, the New Jersey Supreme Court found that when an employer has in place a well-publicized and reasonably effective policy designed to eliminate discriminatory harassment in the workplace, and an employee fails to comply with the policy, the employer may avoid liability for the harassment perpetrated by its supervisors or the victim’s co-workers. This is called the “Ellerth-Faragher Defense” which gets its name from two United Supreme Court decisions Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Under the Ellerth-Faragher Defense an employer can avoid liability to a victim of harassment if no tangible job action was taken against the employee (such as a firing or demotion) and: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, supra., 524 U.S. at 807; Ellerth, supra,, 524 U.S. at 765.

Many victims of work related harassment are reluctant to report it for fear of retaliation; this is especially true if the harasser is a supervisor. Nonetheless, the Aguas decision instructs that failure to report the harassment could bar the victim from being able to sue an employer to recover damages for any physical, mental or emotional harms caused by the harassment. However, if you are a victim of harassment and fear retaliation if you report the harassment, you should consider that the LAD makes it unlawful for an employer, “to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.” N.J.S.A. 10:5-12(d). Simply put, if your employer retaliates against you for reporting the harassment, you can and should sue them under the LAD for having done so. Victims of harassment and retaliation must do whatever is necessary to protect their right to sue in court to hold their employer and the harasser(s) accountable for the damage and harm caused by their unlawful actions.

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Lisa is a new probationary employee with a New Jersey company who has been the target of sexually offensive remarks by Doug, a male co-worker.  Doug’s harassing behavior includes, but is not limited to, asking Lisa: a) to sit on his lap; b) what her bra cup size is; c) to wear short skirts to work; d) to have a drink with him after work after she already declined to do so; and e) to take a “selfie” with him at her desk.  Lisa’s complaints to her boss and Human Resources about Doug’s incessant behavior has not stopped his unwelcome antics.  As a result, Lisa finds herself constantly fearful, anxious, sad, irritable, crying; she is distracted and having trouble focusing both at work and home. Her appetite has greatly decreased and she is having trouble sleeping. Lisa went to see her doctor and was informed her blood pressure was elevated and she was suffering from anxiety and depression. In addition to prescribing her medicine, the doctor has recommended Lisa immediately go on disability and consult with a mental health professional. Lisa tells the doctor that as a new employee she will not be eligible for health insurance for another two months, she has no personal savings, and has so far paid very little money into the state disability insurance program. She is both sick and fearful of losing her job and doesn’t know what to do. What Lisa needs to do is to call both an employment lawyer and a workers compensation lawyer.

The employment lawyer will immediately do everything necessary to protect Lisa’s legal interests as a victim of workplace sexual harassment including, if necessary, filing a lawsuit on her behalf asserting claims for violation of New Jersey’s Law Against Discrimination (LAD). The workers compensation lawyer will immediately place the employer on notice that Doug’s unstopped harassment has caused Lisa to suffer mental health injuries arising out of her course of employment and will demand that she immediately receive authorized medical treatment and workers compensation temporary disability benefits. If the employer fails to provide such benefits, the workers compensation lawyer will then file a workers compensation claim petition with the New Jersey Department of Labor and Workforce Development, Division of Workers Compensation Workers and file a motion with the workers compensation court seeking to compel the employer (and its insurance company) to provide Lisa with authorized medical treatment and temporary disability benefits. Assuming Lisa has suffered a partial permanent psychiatric injury, the workers compensation lawyer will eventually petition the workers compensation court to award Lisa money for her disabling injuries.

New Jersey law permits Lisa to file a LAD discrimination claim with the New Jersey Superior Court while at the same time pursuing a workers compensation claim before the New Jersey Division of Workers Compensation. This is because LAD claims and other intentionally caused harms are claims not subject to the exclusivity provision of the Workers Compensation Act.  In 1997, our State Supreme Court affirmed that employees could bring both a workers compensation claim  and a collateral discrimination and/or intentional infliction of emotional harm claim arising out of similar sets of facts and circumstances against the same employer where intentional acts by co-workers or the employer cause psychological disability to the employee. Schmidt v. Smith, 294 N.J. Super. 569, 584 (App Div. 1996) aff’d 155 N.J. 44 (1997) (“If the Legislature had intended workers compensation to be the exclusive remedy for victims of harassment and discrimination in the workplace it would not have provided for a jury trial as well as compensatory and punitive damages.”); Gardenshire v. N.J. Manufacturers Ins. Co., 333 N.J. Super. 219, 230 (Law Div. 2000).

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Amir is an American born Muslim of Pakistani descent. Amir has recently obtained an entry level administrative position at ABC, Inc., a large pharmaceutical company.  Two white co-workers in Amir’s department, Billy and Bob, who similarly hold entry level positions at ABC, dislike Muslims.  As a result, Billy and Bob scheme to get Amir fired by falsely reporting to their department manager Tony having seen Amir stealing drug samples used by the company’s sales team.  Relying on what Billy and Bob reported to him, Tony decides to fire Amir. Thereafter, Amir retains an employment lawyer and files a wrongful discharge discrimination lawsuit against ABC. While the lawsuit is pending, Billy and Bob’s discriminatory scheme is uncovered. Will Amir and his attorneys be able to hold ABC liable for Manager Tony having fired Amir based on what Billy and Bob reported? Under the so-called “cat’s paw” theory of liability, the answer appears to be yes.

Our United States Supreme Court in a case entitled Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), held that “an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make the ultimate decision.”  Id. at 1187.  Prior to this ruling, lower federal courts had favorably applied the cat’s paw theory in discrimination cases. Abramson v. William Paterson College, 260 F.3d 265, 286 (3d Cir. 2001) (“it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate.); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (“If the employee can demonstrate that others had influence or leverage over the official decision maker . . . it is proper to impute their discriminatory attitudes to the formal decision maker.”); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (stating that “discriminatory comments . . . made by . . . those in a position to influence the decision maker” can be evidence of pretext); Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“Evidence of a subordinate’s bias is relevant where the ultimate decision maker is not insulated from the subordinate’s influence”). Similarly, the New Jersey Appellate Division adopted the cat’s paw theory from Staub and applied it under New Jersey’s whistleblowing law known as the Conscientious Employee Protection Act, or CEPA. Battaglia v. United Parcel Service, 2011 N.J. Super. Unpub LEXIS 2180 at * 29 (App. Div. Aug. 12, 2011); see also Lowe v. Medco Health Solutions of Willingboro, LLC, 2012 U.S. Dist LEXIS 59137 at *48-49 (D.N.J. Apr. 27, 2012) (“it appears likely that New Jersey will adopt a standard similar to the “cat’s paw’ theory enunciated in Staub”).

In Burlington v. News Corp., 55 F. Supp. 3d 723 (E.D. Pa. 2014), the United States District Court for the Eastern District of Pennsylvania concluded the “cat’s paw” theory of imputed causation in discrimination cases should be extended to situations where the discriminatory animus influencing the decision-maker stemmed from a nonsupervisory employee. Id. at 738; see also Harris v. Warrick Cnty. Sheriff’s Dep’t., 666 F.3d 444, 448 (7th Cir. 2012) (noting that co-worker “cat’s paw” liability might have been available had the plaintiff established causation); Keefer v. Olin Corp., No. 09-cv-23-WDS, 2011 WL 4474966, at *3 (S.D. Ill. Sept. 26, 2011) (“Plaintiff has to show that there is supportable evidence that the unidentified ‘nurse’ somehow actually influenced the decision maker . . . or that the nurse was in a supervisor capacity.”); Johnson v. Koppers, Inc., No. 10 C 3404, 2012 WL 1906448, at *6-7 (N.D. Ill. May 25, 2012) (expressly extending the cat’s paw doctrine to co-workers).