The Zatuchni & Associates bi-monthly employment law newsletter is back! Here's a sampling of some of the major legal developments impacting NJ employers in the last year or so.
This issue concentrates on employer liability under the NJ Law Against Discrimination. If there are other issues you would like to see specifically addressed, please let us know.
Existence of a Sexual Harassment Policy Alone Does Not Insulate Employers From Liability Under the LAD
Courts have long held that an anti-harassment policy, complete with procedures for filing and investigating complaints, is evidence of due care that may shield an employer from liability for acts of sexual harassment committed by its employees. However, as the New Jersey Supreme Court made clear in Gaines v. Bellino, 173 N.J. 301 (N.J. 2002), policies and procedures by themselves are not enough to do so.
In Gaines, the plaintiff was a female County corrections officer who was sexually harassed by her shift supervisor. Among other things, the supervisor forcibly kissed her, then joked about the incident with other supervisors. The plaintiff complained about the kissing episode to several employees, including two supervisors, both of whom told her to file a formal complaint as per the County's sexual harassment policy. The plaintiff, however, declined to do so.
Nearly five years later, the kissing episode came to the attention of the correction facility's Warden, who also urged the plaintiff to file a complaint. Again, the plaintiff refused to do so. Nonetheless, the County filed disciplinary charges against the supervisor and suspended him for thirty days.
Subsequently, the plaintiff filed a complaint seeking to hold the County vicariously liable under the LAD for the supervisor's harassment. The County argued that it was immune from liability because it had a sexual harassment policy with complaint and investigation procedures. The County argued that the plaintiff could have used these procedures, but chose not to. The NJ Supreme Court, however, disagreed and held that the policies and procedures alone did not shield the County from liability.
Basically, the Court made clear that the mere existence of policies and procedures don't prove that an employer has taken sufficient steps to prevent sexual harassment. Key to the Court's decision was testimony from the plaintiff and her co-workers that the County's sexual harassment policy was widely perceived to be ineffective. Most notably, this was because:
- Supervisors were not trained on the policy.
- Supervisors had often violated County policies in the past without retribution. For instance, the harassing supervisor in this case routinely violated the County's hours policy and dress code.
- Supervisors routinely brushed complaints of harassment aside or treated them playfully. In this case, when the harassing supervisor bragged about the kissing incident to another supervisor, he jokingly covered his ears.
The Gaines decision sends the cautionary message that, when it comes to sexual harassment, it's not enough for employers to simply "talk the talk" -- they have to "walk the walk" as well. Talk to your counsel to determine whether your company's stance on sexual harassment will shield it from liability.
Independent Contractors and the LAD
Two recent cases shed light on the extent of employer liability towards independent contractors under the Law Against Discrimination:
Chrisanthis v. County of Atlantic: Employer's Duty To Investigate Does NOT Make Employer Liable to Independent Contractors Under the LAD.
In Chrisanthis, 361 N.J. Super. 448 (June 30, 2003), the plaintiff was a nurse whom the employer County contracted with to provide services at a correctional facility. Allegedly, a corrections officer touched her inappropriately and demanded sexual favors. The plaintiff reported the incidents and the County processed and investigated her complaint as per its formal anti-harassment policy. In the end, the County determined that the plaintiff's complaint was unsupported.
After her contract ended, the plaintiff sued the County under the LAD for sexual harassment. Employers are not liable for protecting independent contractors from sexual harassment under the LAD; however, plaintiff argued that, because it undertook an investigation on her behalf, the County treated her as its employee and thus was liable to her as an employee for LAD purposes.
The court emphatically disagreed. It found that the County had a legal duty to investigate any allegations of purported sexual harassment committed by one of its employees. However, the fact that the County undertook that investigation did not make the plaintiff a County employee for LAD-liability purposes.
But Wait! . . . Rubin v. Chilton: LAD Liability DOES Attach For Refusing to Contract With Any Person For a Discriminatory Reason
In Rubin, the plaintiffs were a pair of pathologists who provided services to the defendant hospital on a contract basis since the late 1960's. The hospital terminated the pathologists' contracts in 1997, when they were age 63 and 68, respectively. The pathologists then sued the hospital, claiming age discrimination in violation of the LAD.
The hospital sought to dismiss the pathologists claims, arguing that it could not be held liable under the LAD because the pathologists were independent contractors, not employees. However, the Court allowed the pathologists claims to proceed under a provision of the LAD that prohibits an employer from refusing to contract with a party because they are a member of a protected class.
Specifically, the LAD states:
"It shall be an . . . unlawful discrimination . . . for any person to refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person on the basis of race, creed, color national origin, ancestry, age, sex. . . of such other person." N.J.S.A. 10:5-12l.
Did You Know? . . .
. . . that adult ADD is a "handicap" under the LAD, as well as alcoholism, depression, anxiety, gender dysphoria and other psychiatric disorders? In fact, our very own NJ Supreme Court has said that the definition of "handicapped" for LAD purposes is NOT limited to "severe" disabilities such as blindness. Andersen v. Exxon Co. 89 N.J. 483, 495 (1982).
Employer's Post-Termination Retaliatory Conduct Actionable Under the LAD
The New Jersey Supreme Court has held that an employer's actions after terminating an employee may serve as the basis of a claim under the Law Against Discrimination ("LAD"). In Roa v. Laffe, the plaintiffs were a husband and wife, Fernando and Liliana Roa, who both worked for the same company. The Roas claimed that their supervisor harassed and threatened them after Fernando told the supervisor's wife that her husband was having an affair. They also claimed they suffered additional retaliation after Fernando informed the company owner that the supervisor was sexually harassing other female employees. Ultimately, the company terminated both the Roas, and prematurely cancelled Fernando's health insurance before he had completed his last day of work on October 3, 2003. As a result, the couple was billed roughly $6,000 in medical expenses Liliana incurred on October 2, 2003. The company eventually corrected the premature cancellation and insurance covered the expenses. Then, two years later, the Roas filed a retaliatory discharge claim against the company under the LAD.
The NJ Supreme Court held that the Roas' discharge claim was time-barred under the statute of limitations. However, the Court ruled that the company's premature cancellation of Fernando's health insurance was actionable and not time-barred, even though it occurred after Fernando was discharged. The company argued that it could not be held liable for the cancellation, since it no way related to Fernando's present employment (he had already been fired when the cancellation occurred) or future employment prospects. The Court, however, reasoned that placing the company's post-employment retaliatory conduct outside the reach of the LAD would undermine the purpose of the law. The Court further ruled that the cancellation of the Roas' insurance was actionable because it was "materially adverse" within the meaning of the LAD, since it had impaired the Roas' credit and caused them financial difficulty and distress. All in all, the Roa decision helps ensure that employers cannot continue to retaliate against en employee past the date of his termination.
LAD Requires Employers to Accommodate Employees' Religious Practices
Did you know that, under the LAD, employers must accommodate their workers' religious observances? Specifically, the law prohibits an employer from requiring a worker to violate or forego a sincerely held religious practice or observance, such as attending services for Sabbath or other holy days. The law also prohibits an employer from withholding leave from a worker, when the leave is for purposes of a religious practice or observance. The only exception to this duty is if the accommodation causes the employer "undue hardship", defined as an accommodation that creates "(1) unreasonable expense or difficulty; (2) unreasonable interference with the safe or efficient operation of the workplace
or a violation of a bona fide seniority system; or (3) a violation of any provision of a bona fide collective bargaining agreement." In addition, an accommodation rendering an employee unable to perform the essential functions of the job constitutes undue hardship.
In cases where the employer DOES provide leave as a reasonable accommodation, however, the law allows the employer to require the worker to make up the lost hours at a "mutually convenient time", to treat the absence under the company's leave policy (as long as it is not counted as sick leave), or to treat the absence as leave without pay. As such, the law attempts to strike a balance between the employer's business needs and the demands of the worker's religious faith.
Talk to your counsel about whether it's possible for you to accommodate employees with mental health issues.
