McCrory v. Rapides Regional Med Center (LA, 1986) Title VII case, Facts: Plaintiffs were EMT (Roshto) and Paramedic (McCrory) Plaintiffs were having extra-marital affairs with coworkers Plaintiffs were fired due to conduct causing disruption Plaintiffs filed EEOC charge of religious discrimination claiming they were fired because of their religion (Baptist) and their manager?s religious beliefs on extra marital affairs which conflicted with their private right to have such affairs, i.e. claimed private right to commit adultery which they claim conflicted with supervisor?s belief (even though he was also Baptist) EEOC gives right to sue letter Plaintiffs filed suit in district court RELIGIOUS PRIMA FACIE TITLE VII CLAIM Bona Fide (i.e. sincere) religious belief Conflict with employer?s policy or practice Employer must have notice of belief Adverse employment action taken Only issue Plaintiffs could establish was #4. Court held primarily on #1: Decided no bona fide religious belief (defined pg 4) Issue: Whether Title VII violation. Religious discrimination (Title VII) and Right to Privacy (constitutional ? requires State action) Holding: No, did not violate Title VII. Summary Judgment for Defendant Plaintiffs tried to invoke constitutional claim that Employer (defendant) accepts Medicare & Medicaid and is regulated by State and Federal Government = ?State? functions, also that defendant financed new facility with Federal funds. Court said no, not State action. Decision is private employer internal decision over it?s staff. Also required Plaintiffs to pay Defendant?s legal fees. Sanctioned both Plaintiff?s and their attorney. Rule 11: When attorney signs document he certifies he has done some ?pre-filing inquiruy into both facts and law.? Title VII Religious Accommodation - Employer has :duty of Reasonable Accommodation.? Employer can show ?undue hardship? to refute accommodation (time and money). SEXUAL HARASSMENT Violates: Title VII (Sex) NJ Law Against Discrimination [statute of limitations: 2 yrs] Common Law Assault (Fear of battery, i.e. unwanted touching) Intentional infliction of emotional distress Involves ?unwanted sexual advances? Any policy against co-worker dating (may not be harassment but could open up to policy violation) Some employers require employees to sign document that employees are in relationship Will include ?consensual? statement Require employees to notify employer if relationship ends (disclose) Quid Pro Quo (this for that) Often involves boss (has the power) Demand for several favors by manager in return for something (promotion, good review, etc) Hostile Work Environment Inappropriate Comments Offensive Material (e.g., pin up calendar, internet porn) 3/22 MERITOR SAVINGS BANK V. VINSON (US Supreme Ct, 1986) Appeal Mr. Taylor also named as defendant Issue: Whether violates Title VII Facts: Employee went on leave of absence and was terminated for excessive leave. Procedure: 11 day bench trial District Court Did not resolve conflict in testimony but determined ?if there was a sexual relationship it was voluntary. Bank not liable because it wasn?t reported (not ?on notice?) US Supreme Court Not whether ?voluntary? but whether sexual advances were ?unwelcome? Need not show economic loss Finding: Was affirmed and remanded Next time trial judge will need to determine if there had been ?sexual harassment? resolving conflict of he said/she said testimony (will determine based on who he finds most credible). For sexual harassment, need not show adverse employment action. The harassment is illegal (adverse) action. Next time trial judge will need to determine if there had been sexual harassment by resolving conflict of he said/she said testimony. Will determine based on who he finds most credible. For sexual harassment, need not show adverse employment action. The harassment itself is the illegal (adverse) action. LEHMAN v TOYS-R-US (NJ Supreme Court 1993) Case under NJ LAD Facts Lehman worked at Toys R Us since 1981 as Purchasing Clerk. Promoted to Supv Baylous hired Nov 1985 as Director of Purchasing Lehman sees Baylous being inappropriate to other women Three incidents then happen to her: Told to ?stick out your tits? to another employee whose 300 page report she had to reject Tells her she has cute ass Lifts her shirt and says ?give ?em a show? She reports it to Baylous boss, Bill Frankfort She then reports incidents to Employee Relations ER manager (Jonas) says he will speak to Balous Additional incidents occur and ER Manager tells her she?s was ?paranoid? and offers her a transfer within the company. She rejects suggestion of transfer because she had not done anything wrong and did not think she should be the one to be transferred. Jonas suggests she keep diary of what?s happening Additional incidents occur and she reports situation to Exec VP She is then called to HR and HR offers transfer which she again rejects Next day she gives notice & HR again offers transfer. Baylou comes in, concedes he may have said few inappropriate things and is apologetic initially, then gets upset and angry. Voluntary Resignation v ?constructive? discharge Plaintiff brings lawsuit in Law Division under NJ LAD She loses LAD claim and is awarded $5000 for one incident of unwanted touching (battery) Plaintiff files appeal Issue: Whether facts support LAD sexual harassment claim. NJ LAD has ?Reasonable Woman? standard: Does conduct violate law under this standard. Plaintiff must show: Conduct occurs because of Plaintiff?s sex Conduct is severe OR pervasive Reasonable woman would find conduct offensive Conduct results in hostile work environment (terms and conditions of employment have been altered) Holding: Reversed and remanded to law division for trial. SEXUAL HARASSMENT POLICIES Purpose of policy is notice to employees and management Notice to managers (potential harassers) Notice to employees (potential victims) to advise what is considered sexual harassment and what the procedure is for reporting such incidents Generally employees have to sign authorization that they have received policy (effort to protect company from liability in case of future lawsuit Requires company to investigate harassment claims If deemed valid, addresses what remedial action will be taken Retaliation-- Also advises employees involved in investigations that the company does not tolerate retaliation (for making a claim) and who to advise if employee believes retaliation has occurred. LIABILITY Common law agency principals. Under LAD, employer liability for supervisory hostile work environment sexual harassment is governed by agency principals. Principal (employer) Agent (manager) - Takes action, representative on ER?s behalf When can principal be liable for actions of agent? If agent acting ?within scope of agency (employment)? then can be liable Assume Plaintiff wins: Employer strictly liable for equitable damages (price of doing business) Reinstatement Back Pay Compensatory damages ? sometimes employer is liable under agency standards (depends on facts of case) Punitive Damages ? If upper management had notice or knowledge, then employer WILL be held liable. NORTH COUNTRY ? movie Employer required her to get pregnancy test ? Illegal Hostile work environment: Ejaculated on clothing Groping Pornographic, offensive graffiti Inappropriate comments No sexual harassment policy She went to manager to complain and was rejected Went to company owner who offered to allow her to resign Company attorney (female) tried to make it that plaintiffs were wrong, the ?nuts & sluts? defense JESPERSEN v. HARRAH?S (9TH Circuit, 2004) Grooming Policies - can cross line into discrimination (race, sex, religion) FACTS. Jespersen was bartender at casino sports bar Initially Harrah?s policy did not required female employees to wear makeup. It was encouraged but remained optional. Harrah?s established ?Personal Best? program and stipulated appearance guidelines. Shortly after policy issued, it was amended to require females to wear make-up, have hair ?done?. Jespersen said no, she would not wear make-up. Harrah?s gave her 30 days to find another job. Harrah?s terminated Jespersen. PROCEDURE: Jespersen made claim to EEOC of Title VII violation based on sex, received right to sue letter. Files case in District Court, which granted summary judgment for Harrah?s. Jespersen appealed to 9th Circuit ISSUE Whether Harrah?s policy violated Title VII by crating ?unequal burden? due to requirement for women to wear make-up (expenditure of time and money). HOLDING 2-1 Decision in favor of Defendant (Harrah?s) Court said Plaintiff had not proved ?unequal burden? and ?no record? established through evidence. 9th Circuit held ?enbanc? hearing (includes all 9th Circuit judges) and majority affirmed. DESANTIS v. PACIFIC TELEGRAPH AND TELEPHONE (9th Circuit, 1979) FACTS: 3 cases were ?consolidated? (common legal issues) DESANTIS, Boyle, and others v. Pacific T&T STRAILEY v. Happy Times Nursery School LUNDIN, Buckley v. Pacific T&T All involved civil rights action regarding sexual orientation discrimination ISSUE: Whether sexual orientation discrimination violates Title VII (under ?sex? category) HOLDING No, defendants did not violate Title VII because sexual orientation not covered under sex. ?Statutory Interpretation? (meaning of law) Read plain words of statute Apply legislative history Family and Medical Leave Act (FMLA) v. New Jersey Family Leave Act (NJFLA) FMLA NJFLA Definition of Employer 50 employees (work min 20 wks/yr) SAME Definition of Employee Emp min 1 year / 1250 hours per year Emp min 1 year, 1200 hrs/yr Circumstances Covered (A) Birth or adoption (B) Serious med condition (child, spouse, parent) (C) Serious med condition of employee SAME SAME NOT COVERED Time 12 weeks in 12 month period 12 weeks in 24 month period Paid / Unpaid Unpaid SAME Job Impact Guarantee return to same or similar job SAME Health Coverage Maintained during leave SAME Intermittent Leave Yes for serious health condition SAME Notice to Employer Required (30 day or when practical) SAME Medical Certification Required for medical condition SAME Retaliation Not permitted SAME NJ PAID FAMILY LEAVE ACT ? Extension of NJ State Disability Program 6 weeks paid leave 2/3 salary to max ($524 wk) Employee funded (through disability tax) GERITY v. HILTON (NJ Supreme Ct, 2006) FACTS Hilton Medical Leave policy provided for 26 weeks of leave Policy required automatic termination of employee who was unable to return at end of 26 weeks, no exceptions (i.e., employer refused to exercise discretion) Gerity had high-risk pregnancy, had to start medical leave early and exceeded 26 week leave limit. Gerity claimed only women can get pregnant so Hilton policy discriminates against women who have high risk pregnancy that puts them out for extended period. ISSUE Whether Hilton?s policy resulted in disparate impact sex discrimination in violation of NJLAD. Such a claim requires: Facially neutral policy Results in disparate impact on protected class HOLDING No, Harrah?s policy does not result in disparate impact discrimination and does not violate NJLAD (4-3 decision) Majority focused on Hilton?s liberal policy of 26 weeks and that it had ?no exceptions? so was applied equally. _____________________________________ DISABILITY DISCRIMINATION Rehabilitation Act 1973 - uses term ?handicap?, applied to employers who received federal funding so did not apply to all employers Americans with Disabilities Act 1990 ? uses term ?disability?, applies to all employers NJLAD 3 Basic ways to establish disability claim. Plaintiff is covered when: Diagnosed with disability Record of disability Regarded as having disability Also, Plaintiff must ?otherwise be qualified to do job? Employer must ?reasonably accommodate? disability Employer can show ?undue hardship? to refuse accommodation (usually cost) Employer MUST have notice of disability to be liable. ARLINE v. SCHOOL BOARD (US Supreme Ct, 1987) FACTS Plaintiff had tuberculosis and was hospitalized in 1952 then disease was in remission for 20 years. Plaintiff has tuberculosis relapses in 1977, 1978. Defendant terminates plaintiff due to fear of being contagious PROCEDURE Plaintiff files suit in district court which found for defendant, stating that she was not covered (by Rehab Act) because condition was ?contagious? disease. Court of appeals reversed, holding that ?contagious?disease was within scope of Rehab Act . ISSUE Whether tuberculosis considered ?handicap? within scope of Rehab Act. HOLDING: Yes, it is covered by Act and is not an issue of whether contagious. CEPA (Conscientious Employee Protection Act) NJ Whistleblower Law (anti-retaliation law) 1 year to bring suit For Prima Facie CEPA case Plaintiff must prove: Reasonable belief of a violation of law by employer Have to object/complain about violation (can be to employer or outside party such as police or public agency) Must have suffered adverse employment action Nexus (connection) between (b) and (c ABBAMONT v. PISCATAWAY (NJ Appellate Division, 1993) FACTS Plaintiff is industrial arts teacher (non-tenured) in public school Plaintiff complained numerous times about equipment, supplies and primarily ventilation problems in shop Plaintiff eventually develops pulmonary condition; student collapses from fumes Got no response from requests to Principal, supervisor Superintendent said he spoke to Principal & supervisor and ?most things taken care of? Continues to complain, requests OSHA review Supervisor tells him ?I?m done with you ? you?ll never get tenure? Asst Superintendent tells him ?you go your way, we?ll go ours? While on medical leave, receives letter from Principal telling him he won?t get tenure or be rehired PROCEDURE: Plaintiff appealed to School Board, rejected Files suit in district court. Judge dismisses case after jury finds for Plaintiff & awards $60,000 Plaintiff appeals Did he meet Prima Facie Case: Belief: Yes Objected: Yes, well documented in writing Adverse Action: Yes, not given tenure/not rehired Nexus: Yes, jury had already determined. ISSUE: Did defendant violate CEPA? HOLDING: Yes, did violate CEPA. Case reversed and remanded. Reinstated original verdict from initial district court trial ______________________________________ TORT: Cause harm/injury to another. Includes IIED (Intentional Infliction of Emotional Distress) Plaintiff must prove: Intentional and outrageous conduct by defendant Proximate cause Severe emotional distress TAYLOR v. METZGER (NJ Supreme Ct, 1998) FACTS Plaintiff is African American female officer in Sherrif?s office While at firearms training, said hello to defendant (Metzger ? Sheriff, her boss) he states to an Undersheriff ?there?s the jungle bunny.? Plaintiff gets upset, tells coworkers who laugh. Plaintiff goes to union who demands apology from Metzger. Metzger tries to say he made comment because he was in Vietnam and she was wearing camouflage fatigues at the time. She actually was wearing jeans and sweatshirt so she refuses to accept apology. Plaintiff talks to media and then receives death threats, threats to her safety. Plaintiff is so distraught she seeks psychiatric treatment. PROCEDURE Plaintiff files suit claiming: Violation of NJLAD (race) IIED Prima Facie Tort Under LAD, threshold for claim comes under ?Reasonable (African American) Standard?. HOLDING Yes, qualifies under LAD. One incident can be sufficiently severe. Yes, a jury could find cause for IIED. MOORER v BAPTIST (6TH Circuit CT Appeals Ct, 2005) FACTS Plaintiff is Administrator and CFO of two hospitals. Manager believes she smells alcohol on his breath at meeting, employee says it was Listerine. She also said he was fidgety and had ruddy complexion which he said was because he just returned from vacation. Manager concludes he is alcoholic. Employee is told he has to go into Rehab for Alcoholism. Admits to alcoholism but hasn?t had a drink in a while. Manager calls Plaintiff?s wife while he is in rehab and tells her alcoholism is an incurable disease. She has personal experience with family members. Plaintiff is terminated before he can come back to world. He had been spoken to about performance before rehab and then management looks for and finds more performance issues. PROCEDURE Employee files Claim with EEOC, then files case in district court. ADA ADEA FMLA ISSUE: Whether defendant violated ADA and FMLA HOLDING: Affirmed finding in favor of Plaintiff Back pay Front pay Compensatory damages (no punitive damages awarded) Attorney fees
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