Benjamin N. Cardozo School of Law, Class of 2012

A recent U.S. Supreme Court case has broadened the scope of individuals who may be able to raise a claim of retaliation.In Thompson v. North American Stainless, (2011), the Court unanimously held that Title VII of the Civil Rights Act of 1964 (“Title VII”) creates a cause of action for third-party victims of retaliation.

The plaintiff, Eric Thompson, and his fiancée had been employed by North American Stainless (“NAS”).  Thompson’s fiancée filed an Equal Employment Opportunity Commission discrimination complaint against NAS, and three weeks later, the company fired Thompson.  Thompson ultimately sued, alleging that NAS retaliated against him as a result of his fiancee’s complaint against the company.

The Court had little difficulty in finding that based on the facts presented, NAS’ termination of Thompson violated Title VII’s anti-retaliation provision, which prohibits an employer from discriminating against any of his employees because he has made a charge under Title VII. 42 U.S.C. § 2000e-3(a). The Court reasoned that Title VII’s anti-retaliatory provision must be construed to cover a broad range of employer conduct. Furthermore, Title VII prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

Under this broad standard, the Court concluded that it is “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Id.

In deciding the second issue of whether a third party can sue for retaliation under Title VII, the Court determined that an employee constitutes a “person aggrieved” and is eligible to bring a Title VII challenge when that person “falls within the zone of interests” protected by the statute. Because Thompson was an employee of NAS and the purpose of Title VII is to protect employees from their employers’ unlawful conduct, the Court found that Thompson was within the zone of interests sought to be protected by Title VII. The Court declined to adopt a bright-line test for which relationships would be covered under this standard. In an attempt to provide at least some guidance, Justice Scalia noted that while the termination of a close family member will almost always meet this standard, retaliation against a mere acquaintance may not.

Although it does not establish a bright-line test for third-party retaliation claims, this decision could have an impact upon employees’ incentives to file discrimination claims as well as the frequency of employers’ retaliation on third parties. In creating an independent cause of action for retaliation on behalf of friends and family members who have not engaged in protected activity, the opinion expands the group of employees who can actually file Title VII claims.  It is now likely that employers will now take extra precautions when taking adverse employment action against any worker closely related, married or engaged to an employee who has engaged in protected activity.

The New Jersey Law Against Discrimination (“LAD”),  is intended to prohibit discrimination on the basis of several protected categories, including age. owever, the LAD contains an exception which permits employers to discriminate against individuals over 70. The “over 70 exception” to the LAD provides that, “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age….”

But should this exception permit employers to refuse to renew the contracts of employees based upon their being over 70? Not according to the New Jersey Supreme Court’s recent holding in Nini v. Mercer County Community College (2010).

Rose Nini worked for Mercer Community College continuously for twenty-six years under a series of contracts. Her last contract was not renewed and she sued the school for age discrimination. The school countered that since Nini was over 70 she was not covered by the LAD because of its “over 70 exception.” Nini lost in the lower courts, but prevailed in the New Jersey Supreme Court. The Nini majority found that the “over 70 exception” applies to initial hiring decisions, but not to contract renewals. The Nini Court reasoned that a contract renewal amounts to the same thing as a termination, and termination based upon age is prohibited by the LAD’s broad remedial purpose and strong public policy of eradicating discrimination in the workplace.

The Supreme Court also observed that it would create a loophole in the LAD’s protections by permitting employers who want to terminate their aging employees to simply put them under contract and then not renew the contract. The Nini Court further noted that it would also have the absurd result of giving greater protections to “at will” employees (i.e., those without contracts) than to contract employees.

One caveat to the Supreme Court’s holding might be the extent of the employee’s pre-existing relationship with the employer. Nini had a long-term and successful pre-existing relationship with the college, which was a significant factor in the Supreme Court’s finding in her favor. What about the over-70 employee whose relationship is only a year or less? The Nini Court failed to address whether or not the pre-existing relationship must be of any specific length or scope. Thus, chances are that employers will try to distinguish cases in which the employee has a short pre-existing relationship from the type of lengthy career that Nini had at the college. Thus, it remains to be seen whether this will be a hard and fast rule, or may be modified down the road.

According to the U.S. Bureau of Labor Statistics, the current estimated number of unemployed persons is 13.9 million, making the unemployment rate approximately 9%.[1] The number of long-term unemployed (those that have remained jobless for over 27 weeks) is estimated to be 5.9 million which is about 42.4% of the total unemployed.[2] Of this, Black and Latino persons hover at even higher unemployed rates.[3] Thankfully, employers are responding with help wanted ads-although sometimes, the unemployed need not apply.[4]

The discrimination against job applicants because they are unemployed is not a new invention, although recently the White House took note and decided to address the issue head-on. In September of this year, President Obama revealed The American Jobs Act of 2011, a comprehensive unemployment reform and job creation bill. The bill includes measures which would help restore jobs to those workers living in the United States, such as the “Buy American” section, which offers funds in connection with the act to those which would be building or repairing a public building, as long as the materials used were created or purchased in the United States. [5] However, the part of the Act garnering much of the public’s attention is the addition of the unemployed to the discrimination protections already afforded by federal law.[6] The Act attempts to give voice to a rapidly intensifying clamor from the unemployed or underemployed by creating a new protected class and curtailing discriminatory advertisements.

The Act would serve to add unemployment to the now standard classes which federal law protects from employment discrimination and discriminatory hiring practices: race, age, color, religion, gender, national origin, and disability status, among others. The Act will seek to prohibit an employer from rejecting a job applicant solely on the basis that the applicant is unemployed.[7] [8] In addition, if the Act passes, it will prohibit employers from posting job advertisements that specifically exclude the unemployed–like this advertisement which mandates that an applicant be “currently or recently employed.” [9]

On November 8, 2011, the Supreme Court of the United States heard oral argument in United States v. Jones.[1] The case asks the Court to determine whether police, without a warrant, can affix a Global Positioning System (“GPS”) tracking device onto a suspect’s personal vehicle and track the suspect’s movements.[2] The U.S. Court of Appeals for the District of Columbia Circuit had previously decided that the government violated a suspect’s Fourth Amendment privacy interest when it used GPS technology to track the suspect continuously for a month.[3] The D.C. Circuit reasoned that, in the aggregate, the information gathered by the police over the course of a month of continual twenty-four hour tracking revealed much more about the suspect than just his travels, and thus due to the invasion into his privacy required a warrant under the Fourth Amendment.[4] The Supreme Court’s determination of the issues in this case are likely to provide guidance that may be relevant to how employers, both public and private, use GPS tracking of their employees.

One way employers track employees is by affixing a GPS receiver to a vehicle.[5] The receiver may allow the employer to easily locate the vehicle if there is an emergency or if the vehicle is stolen. This approach may be useful for law enforcement agencies and businesses that employ fleets of vehicles, like taxi companies, shipping companies, and messenger services. Alternately, an employer may issue a cellular telephone to an employee that contains a GPS receiver so that the employee’s movements may be tracked. Sprint, for example, offers Workforce Locator to its business customers to track employees using their cellular telephones.[6] Sprint advertises that Workforce Locator allows supervisors to locate and track field employees, send travel directions to handsets, and communicate with employees.[7]

GPS tracking of employees has been challenged in courts by employees in both the private sector and the public sector, but the employers’ use of GPS tracking has been upheld. [8] In Alexandre v. New York City Taxi & Limousine Commission, New York taxi drivers objected to the use of GPS tracking devises on their cabs because the devices would also track their movements while they were off duty.[9] The Southern District of New York upheld the use of the GPS devices because there were adequate safeguards to protect personal information, the vehicle owners had a strong interest in tracking and protecting the vehicles, and the taxi drivers did not have a legitimate expectation of privacy in their movements on public roads.[10]

Employing a similar mode of analysis, the court in Elgin v. St. Louis Coca-Cola Bottling Co. found that the employer did not violate employees’ privacy interests when it used GPS tracking devices to affixed to employees’ vehicles. [11] The court reasoned that the employees had a very limited privacy interest because the vehicles were in public view and the GPS devices only tracked the movements of the vehicles.[12]

In light of this backdrop, the Supreme Court’s approach to the privacy considerations involved with GPS searches, albeit in the criminal context, may provide insight into the Court’s broader considerations of privacy. This may influence employers’ decisions whether to use GPS tracking, employers’ policies on informing their workforce, and whether to get written consent from employees to have their movements tracked. In sum, even though it may not be intended, the Supreme Court’s decision may have a direct impact on employers and employees, and their use of GPS technology in the workplace.

Many times a company will offer benefits to employees who are being laid off or fired. This is part of a separation package or severance agreement that is offered by companies. Usually these are agreements wherein the employee waives their employment law rights prior to receiving certain benefits. The Court of Appeals for the Third Circuit made a ruling that Ms. Rhauni Gregory waived her rights to be able to sue the company for discrimination when she signed a release. She claimed that she was pressured into signing and was only allowed to review it for 15 minutes.

The Third Circuit Federal Appellate Court handles appeals that come through the New Jersey district. This court ruled that the court needed to consider the circumstances from a broader perspective when deciding whether or not an employee had indeed waived legal rights. There are several things that they felt like should be taken into consideration. For instance, the specific language that is used in the release as well as the employee’s business and educational experiences should be considered. The employee also needs to know that they were giving up all of their legal rights upon signing a release. It is also important to note whether or not the employee received encouragement to obtain advice from a lawyer such as Tayeb Hyderally; or whether or not they were given the opportunity to negotiate the specific terms of the agreement. And whether the employee was to receive any other benefits as a result of signing the agreement or release should be a factor.

After looking at all of these factors, the court decided that Rhauni Gregory had waived her rights to bring a race discrimination claim against the school district when she signed the Separation Agreement and General Release. Ms. Gregory felt that she was forced into a resignation when her supervisor evaluated her job performance as unfavorable. After the poor evaluation she was placed in an “intensive assistance track.” According to Gregory she felt it was an oppressive gesture because of her African-American race. However, when she signed the release she waived her right to a discrimination claim based on her national origin. The release was deemed valid even though she stated that she only had 15 minutes to review and sign it.

The court concluded that the union representative negotiated the terms of the resignation for Rhauni Gregory. Also according to the agreement she and her family were entitled to continue medical benefits until the end of the year. It also included a that she would receive a positive letter of reference for her to use to obtain future employment. These two items would not have been available if the separation agreement had not been signed.

In Bowers v. New Jersey Judiciary Thomas Bowers, an Information Technology Analyst claimed that he had suffered from mental and physical distress because of workplace harassment, discrimination and retaliation.  His case claimed that the Judiciary failed to provide him reasonable accommodation according to his level of disability.

Mr. Bowers was diagnosed with Anxiety disorder and the doctor suggested that he take a medical leave from June 6 to July 1, 2007. However, due to the lack of acceptable progress his medical leave was extended several times until he was out until October 1, 2007. According to the Family Medical Leave Act, employees have at least 12 weeks of protected leave. The Judiciary told Mr. Bowers that he was exceeding this protected time and that he would be allowed to use his available vacation time. This would cover his time off until September 6. He was warned that if he was not back at work by September 10 he would be considered to be on “an unauthorized leave of absence” and would be disciplined.

After consulting his doctor and legal counsel Mr. Bower’s lawyer explained to the Judiciary that he would be back at work by October 1. The Judiciary’s answer was that he must return to work by September 10 or disciplinary actions would ensue. Their claim was that the Judiciary had “experienced significant operational hardship” due to his absence. Therefore, they were unwilling to accommodate for his disability. Effective on September 10, 2007 Mr. Bowers was terminated from his position as he had failed to return to work.

The Appellate Division decided that it should be heard by a jury to determine if the Judiciary had failed to provide reasonable accommodations for Mr. Bower’s disability which was in violation of LAD. The courts noted that Mr. Bower’s vacated position was not posted until October 2008 and that the position was not filled until January 20, 2009. Had the Judiciary simply placed Mr. Bowers on unpaid medical leave through September and then allowed him to return to the workplace on October 1 the position would have been unclaimed for only 3 weeks. However, instead, it was empty until January 20. The Judiciary claimed that they had undue financial hardship that prohibited them from filling the position any sooner. If they had overcome this budgetary constraint earlier the jury might have ruled in their favor. As it was, the jury found that the evidence supported Mr. Bower’s claim that the Judiciary failed to accommodate his disability and was in direct violation of the New Jersey Law Against Discrimination.

The case was dismissed by the trial judge for lack of evidence. The court found that even though they did have evidence to support their allegations of the sexual harassment, it was concluded that the employer could not be held liable because Mr. Livingston was not in a supervisory position. And the ladies also lacked evidence that the employer failed to respond to the allegations, or that he even knew of said incidents. However, New Jersey’s Appellate Division disagreed with the decision by the court to dismiss the case. They upheld that an employer could be liable for sexual harassment that was committed by either a supervisor or a coworker if there were no anti-harassment policies in place. Since there was not an active anti-harassment policy, Mercer County had enough evidence to take the case before a jury trial.

Actually, the evidence was present in that Mercer County failed to inform employees about the sexual harassment policy as well as not providing worker training in such matters. They also failed to enforce the policy and did not conduct a thorough enough investigation into the incident. The company also had no criteria to determine if a sexual harassment claim could be substantiated or not. And they did not have any effective ways of measuring if their policies were adequate or effective.

The Appellate Division put the case back into the hands of the trial courts to let a jury decide between the two parties. They will determine according to employment laws in New Jersey whether or not the employer was liable for their employee’s conduct in this matter. Previous cases have set the precedent which makes the employer responsible for having the proper policies in place as well as a way to measure their effectiveness. It is their responsibility to protect their employees and ensure that they are allowed to work in a hostile-free environment. According to the New Jersey Law Against Discrimination (LAD) employers are liable for acts of sexual harassment that are committed by a coworker when the employer does not have an anti-harassment policy in place.

Ty Hyderally will first meet with clients to discuss the allegations that are being made. At this meeting it is important to bring any documentation that is relevant to the case. This will help the firm assess what rights may have been violated. There will then be an investigation into the allegations. Documentation will be checked and any witnesses will be interviewed. In New Jersey a client does not have to file a claim with the EEOC or DCR prior to filing a lawsuit.

After the investigation is completed there is usually a demand letter sent to the company or defendant. This letter outlines the allegations that have been made against them. In many cases, the company will respond to the demand letter and instigate communication with the law offices. It is entirely possible to reach a settlement before ever having to go ahead and file suit with the courts. This is a favorable outcome as it can save money and time.

If there is no settlement offered or settled upon a complaint will be filed with the court. A claim can be filed with either the New Jersey Superior Court or the Federal Court, depending on the type of allegations that are being made. The court will assign a judge to the case and the complaint will then be served to the defendant.  It usually takes a couple of weeks before the court gets the docket number sent back to the law office. As soon as the docket number is filed and received, the complaint will be officially served.

Once the defendant is served with a complaint they have 35 days to answer the matter. Their answer will contain admission, denial or missing information to each specific section of the complaint. Sometimes the defendant will file a motion to dismiss. This simply means that they do not believe the client has enough proof to back up the allegations and they are asking the court for a ruling on their behalf.  The case can then be moved from the New Jersey Superior Court to the Federal Court; or the judge can deny the defendant’s motion. If the motion is denied it simply means the court is requiring them to answer the complaint.

The courts then require mediation. This simply means that a mediator will help to resolve the matter between the two parties outside the court room. Most of the time cases are settled somewhere along the way long before going to trial. But if not, the parties must both file pre-trial orders. The case will then go before a jury trial. The jury will render the decision. If for some reason either party feels that the jury was not reasonable in its findings they can request a change of ruling of the judge. The judge can then reduce the award, order a new trial or even completely change the verdict.

A class action law suit was filed against Mitsubishi Motors Corp by the United States Equal Employment Opportunities Commission on April 9, 1996. The suit contained over 300 claims by women who worked at the Normal, Illinois Mitsubishi plant. Their claims were that they had been subjected to repeated sexual harassment in the workplace which began as early as 1988.  The EEOC alleged that managers had been involved in passing around pornographic photographs of male workers displaying sexual acts, male workers who had exposed themselves, obscene graffiti and assaults (both physical and verbal) against women who worked at the plant. The second part of the class action suit stated that the management and Employee Relations Department failed to respond adequately. Many times there was no response at all to the complaints filed by women who had filed regarding the harassment. EEOC pursued the case to stop the harassment and also to obtain some compensation for the women who had been harassed.

Mitsubishi tried to argue that there were time constraints on some of the older cases and therefore they were not eligible to be included in the class action law suit. However, the court rejected the argument stating that there is not a statute of limitations and that EEOC did not unduly delay their actions.

On June 10, 1998, the EEOC and Mitsubishi reached a settlement. Mitsubishi agreed to pay $34 million in compensation to the workers who had been affected. The company also agreed that they would revamp their sexual harassment policies and adapt a “zero tolerance” policy toward sexual harassment. This meant that they would revise the company’s existent policies and commit to setting up a proper complaint procedure as well as sexual harassment training for its employees. Mitsubishi would also be under review by an independent panel which would monitor the progress at the Normal, Illinois plant. Mitsubishi did become vigilant in their stand against sexual harassment in the workplace and hired Lynn Martin, former Secretary of Labor to help overhaul the system. They now boast a zero tolerance policy.

Sexual harassment is unfortunately part of the day to day life of many workers around the country and makes going to work difficult for many, fortunately there are employment law attorneys such as Tayeb Hyderally who are there to fight vigorously for the rights of all employees.

Sue Ann Dolquist was ordained in the Presbyterian Church and served as pastor. She alleged that during her tenure the choir director, who was also a church elder, made vulgar comments and touched her inappropriately. She reported the conduct to her supervisor who threatened to fire her. The situation was not addressed properly by authorities. When the work environment became unbearable she decided to quit. She then filed suit in federal court against the churches which had employed her stating that the church and its supervisors where in violation of Title VII. The defendants tried to argue a “ministerial exception” but the courts denied this motion.

Miller subjected Dolquist to oppressive, degrading, emotionally upsetting and sexually inappropriate behavior from 1996 to 2001. He was also engaged in such inappropriate behaviors with other women in the church during this same time frame. He finally resigned from his position as music director in June of 2000, but remained in the position of a church elder. When members tried to rehire Miller as the church music director in 2001, Dolquist objected and referred to his past sexual misconduct. In September of 2001 the church advised her that she had also been accused of engaging in behavior similar to Miller’s. In October, 2001, she was fired even though her job performance was satisfactory.

She filed five counts against the Heartland church sexual discrimination, sexual harassment, retaliation, negligent infliction of emotional distress and outrage and failure to supervise. Two of these cases were dismissed, infliction of emotional distress and claim for negligence.

This case was very important in setting precedents to protect employees of religious institutions against sexual harassment in the workplace.