There are some common misconceptions regarding employment law as it pertains to various cases of sexual harassment. It is very important to contact lawyers such as Ty Hyderally who are experts in this arena. Many think that there is only one set way to deal with a situation where sexual harassment has occurred, or continues to occur. One important factor that must be considered is the company policy pertaining to such issues. According to employment law regulations the steps an employee must take when sexual harassment occurs should be clearly drawn out so that there is no misunderstanding. Employment law specialists such as Tayeb Hyderally must sort through the various circumstances regarding each individual situation to ensure that employees and employers are covered in such cases. One case that was somewhat different from the classic cases dealing with this issue is Gorzynski v JetBlue Airways Corp.
According to Title VII of the Civil Rights Act of 1964, employers are prohibited from harassing or discriminating against their employees because of their race, sex, religion, color or national origin. In cases where a supervisor harasses someone assigned to work under them the company must prove that they did everything within reason to correct the situation and prevent further instances. They may also have a defense if the employee that was harassed did not object to it or deal with the situation according to the company’s set policies regarding harassment. The difference in the Gorzynski case against JetBlue Airways was that the victim only complained to the harasser and to no one else in the company. Is that enough to build a case on? It would certainly depend largely on the company’s policies.
Diane Gorzynski was a crewmember for JetBlue Airways Corporation when she was subjected to sexual harassment. According to Ms. Gorzynski, James Celeste, her supervisor, made massaging gestures and stated he wanted to massage her breasts. He frequently made many different statements containing offensive sexual content; and making sexual gestures while on the job. He grabbed female crewmembers by the waste and tried to tickle them on several occasions. The Second Circuit agreed that his behavior possible created a work environment that was sexually hostile for Ms. Gorzynski.
It seems Ms. Gorzynski did comply with JetBlue’s policy regarding sexual harassment. According to the employee handbook it is to be reported to the immediate supervisor, another member of management or the HR department. Ms. Gorzynski objected to the sexual harassment to Mr. Celeste on many different occasions. However, she did not file complaints with anyone else when the harassment did not cease. Her reasoning was that the HR department had retaliated against other employees who had filed similar complaints at work; and other supervisors had been unreceptive to other complaints she had filed.
The initial claim for sexual harassment was dismissed because she did not complain to any other company agent. But the Second Circuit disagreed with this ruling and declared a jury would have to decide. It was upheld that each individual circumstance is unique. They also recognized the courage it took for Ms. Gorzynski to address the situation to her supervisor understanding that there could be retaliation. It was reasonable for her situation to not complain to another supervisor.
There are some notable cases which do not alter present precedents. Tayeb Hyderally is an expert in employment law and has successfully litigated many such cases. He is familiar with federal employment laws as well as New Jersey employment laws. Cases such as Huber v. Wal-Mart Stores, Inc. are among those he is very familiar with.
Pam Huber was earning $13.00 per hour working at Wal-Mart filling orders. In an accident, she injured both her right hand and arm and was no longer able to complete the duties that were required for the position. She requested a transfer to a vacant and equivalent router position. Instead of transferring her within the company Wal-Mart made her compete for the position and then chose another individual that they felt was more qualified. Ms. Huber was then assigned to a janitorial position at another location and reduced her pay to $6.20 per hour.
Ms. Huber chose to sue Wal-Mart and claimed that it was a discriminatory violation of the ADA. It was agreed upon by the trial court who stated that she should have been reassigned to the other position as a reasonable accommodation. However, the appellate court upheld the ruling that ADA requirements only stipulated that Wal-Mart should allow her to compete for the other position. The appellate court upheld the ruling previously made by the Seventh Circuit Court of Appeals in EEOC v Humiston-Keeling which stated that Wal-Mart only needed to offer her the opportunity to compete for the position. There was a private settlement agreed upon between Wal-Mart and Ms. Huber.
According to the ADA reasonable accommodations must be made for a person who has a disability but otherwise can perform job requirements. The ADA also allows for a reassignment when there is a vacant position as a reasonable accommodation if it is available. Ms. Huber stated she was qualified and should have been reassigned. She felt that her rights under the ADA were violated. Wal-Mart maintained that Ms. Huber was not the highest qualified person for the job. This is their reason behind why they did not reassign her to the vacant position. In similar court cases employers have been required to reassign an employee to an equivalent position that has been vacated. But two other courts have maintained that reassignment is not required, but that the employee should be allowed to compete with other applicants.
The Supreme Court dismissed the case in 2008 when Ms. Huber and Wal-Mart reached a private settlement. This leaves it open as to whether or not the ADA requires an individual with a disability to be reassigned to another equivalent position for which they are equally qualified. The Eighth Circuit Court’s ruling that the employee does not have to be reassigned will continue to stand.
There has been much progress in trying to alleviate discrimination in the workplace. Discrimination law has been through many changes over the past 40 years. In 1964 the Civil Rights Act was enacted to protect workers from discrimination based on race, religion, national origin or gender. In 1967 Congress then adapted the law to also prohibit discrimination based on age. And in 1990, Congress once again made changes to discrimination law which also makes it illegal to discriminate against an individual based on a disability. Many states have followed suit and also prohibited discrimination based on sexual orientation.
Many of the worst discriminatory practices were alleviated by the 1964 Civil Rights Act. Resistance to enforcement of the laws is what makes it so difficult to eliminate in the workplace. Political resistance to any form of remedial action has made this a very difficult task to undertake and to succeed. Businesses have become much craftier in their employment schemes which make it even more difficult to detect and even harder to correct. Thus the workplace continues to practice unjust and illegal discriminatory practices. Despite the government’s best attempts to eradicate discrimination in the workplace it sadly still exists.
Only about 2% of cases heard on discrimination are won by the plaintiff, the worker who feels they were discriminated against. However, unfair treatment must not be confused with illegal discrimination. Treating an individual differently than others is in violation of discrimination law when the ill treatment is based on the existence of a characteristic which is protected. Actions by a company based on job performance or even something as subjective as personality do not necessarily indicate discriminatory practices.
When it is proven that a company has been engaged in such illegal actions they can be made to pay up to $300,000 in punitive damages. The person who was dealt with unfairly based on one of the protected groups can receive back pay or reinstatement of their previous position or their job if they were fired. They can be compensated for any pain and suffering that was due to the illegal practices of the business.
The Federal law carries a statute of limitations for most forms of discrimination in the workplace. The complaint must be filed within 180 days of the alleged occurrence. The exception occurs for sexual discrimination. Claims for these cases must be filed within 90 days of receiving the “right to sue” letter from the EEO certifying the individual’s right to file a claim for sexual discrimination.
The New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq., is intended to prohibit discrimination on the basis of several protected categories, including age. However, 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….” N.J.S.A. 10:5-12(a).
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, 202 N.J. 98 (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.
