United Food & Commercial Workers Union 1776 v. Excel Corporation, 470 F.3d 143 (3d Cir. December 1, 2006)

Where arbitration requires an employee’s reinstatement, an employer may disburse back pay and simultaneously terminate the employee on independent grounds. In United Food, the United States Court of Appeals for the Third Circuit held that an arbitrator’s award that required an employer to reinstate an employee did not prohibit immediate firing for separate cause. The employer was deemed to have met the requirements of an arbitration award by having paid the employee back wages, despite simultaneously terminating the employee a second time on independent grounds.

Espina v. Bd. of Review, 402 N.J. Super. 87 (App Div. 2008)

Pursuant to N.J.A.C. 12:17-9.11(b), an employee, absent good cause, is disqualified for unemployment benefits and considered to have voluntarily abandoned employment upon leaving her job for five or more consecutive work days. In Espina v. Bd. of Review, 402 N.J. Super. 87 (App Div. 2008), the New Jersey Appellate Division held that an employee who fails to return to work even after extended employer-authorized absence cannot be deemed to have abandoned her or his employment until the expiration of five consecutive days following the last day of the approved leave of absence.

United Food & Commercial Workers Union 1776 v. Excel Corporation, 470 F.3d 143 (3d Cir. December 1, 2006)

Where arbitration requires an employee’s reinstatement, an employer may disburse back pay and simultaneously terminate the employee on independent grounds. In United Food, the United States Court of Appeals for the Third Circuit held that an arbitrator’s award that required an employer to reinstate an employee did not prohibit immediate firing for separate cause. The employer was deemed to have met the requirements of an arbitration award by having paid the employee back wages, despite simultaneously terminating the employee a second time on independent grounds.

Raspa v. Office of the Sheriff of the County of Gloucester, 191 N.J. 323 (June 12, 2007).

An employee must possess the bona fide occupational qualifications for the job position that the employee seeks to occupy in order to trigger an employer’s obligation to reasonably accommodate the employee to the extent required by the Law Against Discrimination (LAD).  An Employer may reasonably limit light duty assignments to those employees whose disabilities are temporary.  The availability of light duty assignments for temporary disabled employees does not give rise to any additional duty on the part of the employer to assign a permanently disabled employee to an otherwise restricted light duty assignment.  In Raspa, the Supreme Court reversed the ruling of the Appellate Division finding that, although broad, the goal of the LAD is to “eradicate the cancer of discrimination,” is not without boundary.  The court found that the LAD prohibits discrimination against any person due to any such disability or unlawful employment practice, unless the nature and extent of the disability reasonably prevents the performance of the employment.

Pyett v. Penn Building Co., 2007 U.S. App. Lexis 18242 (2nd Cir., August 1, 2007).

The U.S. Court of Appeals for the Second Circuit has held that a clause in a collective bargaining agreement that would require a claimant to resolve a claim of age discrimination in arbitration rather than through the courts system is unenforceable.  In Peyett, the Court based its ruling on a previous decision, Rogers v. NYU, 220 F.3d 73 (2nd Cir.2000).  In the this decision, like Peyett, the Court recognized that, under a collective bargaining agreement, there are potential risks of conflict of interest between the union and the individual and that the interest of the individual may be subordinated to the collective interests of all employees in the bargaining unit.  Thus, the Court holds that an arbitration clause in a collective bargaining agreement does not reflect a worker’s voluntary waiver of his right to a federal forum for his claims.

Klawitter v. City of Trenton, 395 N.J. Super. 302 (App. Div., July 31, 2007).

In the absence of an articulated, overall affirmative action plan to rectify racial imbalances, the use of race as a “plus factor” in employment decisions violates New Jersey’s Law Against Discrimination (LAD).  In Klawitter, the Appellate Division reexamined the interplay between employment decisions aimed at rectifying racial imbalances on the one hand, and the prohibition, under New Jersey’s Law Against Discrimination, against making an employment decision “because” of race. 

Sarnowski v. Air Brooke Limousine, 2007 U.S. App. LEXIS 28668 (3rd. Cir., March 27, 2007).

Courts should broadly construe the FMLA notice requirement when determining whether an employee provided sufficient notice in order to invoke the benefits and protections of the Family Medical Leave Act (“FMLA”). Moreover, a plaintiff need not present expert medical testimony in order to be considered disabled within the meaning of New Jersey’s Law Against Discrimination (“LAD”). In Sarnowski, the United States Court of Appeals for the 3rd Circuit revisited both issues and reversed the trial court’s summary judgment in favor of the employer as to both claims.

Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. March 21, 2008).

In Rweyemamu, the Second Circuit formally adopted the “ministerial exception” to employment cases, which prevents judicial inquiry into sensitive religious matters. By adopting the ministerial exception, the Second Circuit found that religious employees of religious organizations may not bring employment discrimination lawsuits. Moreover, although lay employees may bring employment discrimination suits against religious employers, a judicial fact finder may not inquire as to whether the employer’s proffered nondiscriminatory reason for the employment action was pretextual, where that reason is religious in nature.

Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. August 30, 2006)

Retaliation claims under Title VII do not require that the claimant was the victim of discrimination. In Moore, three white police officers claimed that their supervisors violated their right under Title VII of the Civil Rights Act of 1964 to be free from retaliation for opposing racial discrimination in the workplace. Overturning a grant of summary judgment for the employer, the United States Court of Appeals for the Third Circuit found that the three police officers raised triable issues as to whether they suffered unlawful retaliation, despite the fact that they themselves had not been discriminated against.

Hasan v. U.S. Dep’t of Labor, 545 F.3d 248 (3d Cir. 2008)

The Third Circuit recently held that an employer’s failure to hire an applicant for allegedly retaliatory reasons is a sufficient basis for a lawsuit, even where the applicant had merely responded to an internet advertisement and was not offered a job.

Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008).

In a recently published decision, the Appellate Division of the Superior Court of New Jersey held that a Security Operations Manager who objected to the disposal of New Jersey Transit blueprints for bridges, tunnels, a rail operations center, underground gas lines, and NJT buildings, in bins on a gated loading dock, did not state a prima facie case under the New Jersey Conscientious Employee Protection Act (“CEPA’), N.J.S.A. §§ 34:19-1 et seq., because disposal of such documents did not constitute a clear violation of a statute, regulation or public policy, and because the Security Operations Manager was merely doing her job.

Guyden v. Aetna Inc., 544 F.3d 376 (2d Cir. 2008)

The Second Circuit has held that whistleblower claims brought under the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, are arbitrable and thus may be subject to mandatory arbitration pursuant to an employment agreement.

Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. August 30, 2006)

Retaliation claims under Title VII do not require that the claimant was the victim of discrimination. In Moore, three white police officers claimed that their supervisors violated their right under Title VII of the Civil Rights Act of 1964 to be free from retaliation for opposing racial discrimination in the workplace. Overturning a grant of summary judgment for the employer, the United States Court of Appeals for the Third Circuit found that the three police officers raised triable issues as to whether they suffered unlawful retaliation, despite the fact that they themselves had not been discriminated against.

Aguerre v. Schering-Plough Corp., 393 N.J. Super. 459 (App. Div., May 25, 2007).

The Appellate Division of New Jersey applied New Jersey’s whistleblower protection law, the Conscientious Employee Protection Act (“CEPA”), to claims whose operative facts occurred solely in Argentina, suggesting that CEPA’s reach can be worldwide under the right circumstances.  In Aguerre, the plaintiffs alleged that they were fired as a result and in retaliation of objecting to an Argentine subsidiary’s corrupt practices in Argentina.  All of the operative facts of the case occurred in Argentina.  The plaintiffs entered into settlements that were reduced to judgments in Argentina.  The plaintiffs brought suit in New Jersey, and the Appellate Division allowed their CEPA claim to proceed because their complaint raised substantial public policy issues in the context of the corporate retaliation against whistleblowers employed by a foreign corporation with its headquarters in New Jersey, and specifically because the plaintiffs contend that they were coerced into signing the settlement agreements.

Reddington v. Staten Island University Hospital, 511 F.3d 126 (2d. Cir.2007).

The United States Court of Appeals for the Second Circuit has certified two questions, concerning New York’s general and health care whistleblower statutes, to the New York Court of Appeals.

The underlying dispute in Reddington concerned a hospital administrator who was fired for alleged insubordination, and who then sued her employer, alleging numerous state and federal causes of action, including, among others, age discrimination, intentional infliction of emotional distress, breach of contract, violation of the Fair Labor Standards Act, and violation of New York’s general and health care whistleblower statutes. After most of these claims were either withdrawn or dismissed, the plaintiff appealed from the dismissal of her health care whistleblower and contract claims.

Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008).

A public employee, who incurs an adverse employment action as a consequence of filing a lawsuit addressing purely private concerns, cannot then sue his employer for retaliation under the First Amendment. A public employee’s speech is protected from retaliation under the First Amendment only if the employee spoke as a citizen on a matter of public concern. A public employee cannot transform a personal grievance into a matter of public concern simply by invoking a supposed popular interest in the way public institutions are run.

Pierson v. Medical Health Centers, 183 N.J. 65 (2005)

Agreements restricting the ability of a physician to compete with a former employer are not inherently invalid. In Pierson, the Supreme Court of New Jersey affirmed that restrictive covenants between physicians and hospitals are unenforceable only if the covenants are deemed unreasonable. The Court in Pierson maintained that the test established in Karlin v. Weinberg, a previous New Jersey Supreme Court case, should be used to evaluate such restrictive covenants in the overall interests of the employer, the employee, and the public.

Pierson v. Medical Health Centers, 183 N.J. 65 (2005)

Agreements restricting the ability of a physician to compete with a former employer are not inherently invalid. In Pierson, the Supreme Court of New Jersey affirmed that restrictive covenants between physicians and hospitals are unenforceable only if the covenants are deemed unreasonable. The Court in Pierson maintained that the test established in Karlin v. Weinberg, a previous New Jersey Supreme Court case, should be used to evaluate such restrictive covenants in the overall interests of the employer, the employee, and the public.

Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, 471 F.3d 6 (1st Cir. December 18, 2006)

An employee may count periods of prior employment towards the twelve months required for eligibility for FMLA leave. In Rucker, the United States Court of Appeals for the First Circuit considered, for the first time among the federal appellate courts, whether the twelve months of employment by the employer from whom medical leave under the Family and Medical Leave Act (FMLA) is requested must be consecutive.  The First Circuit relied on the interpretation of the FMLA provided by the United States Department of Labor (DOL), reasoning that when statutory language is ambiguous and legislative intent is unclear, it is appropriate to defer to the reasonable interpretation of the relevant agency.  Based on the DOL’s interpretation of its own FMLA-related regulations, the Court held that discontinuous periods of employment may be combined and counted toward the 12-month requirement.

Sinacole v. IGate Capital, 287 Fed. Appx. 993 (3d Cir. 2008)

The United States Court of Appeals for the Third Circuit has held that a U.S. Department of Labor Regulation, providing that an employee, whose employer had failed to confirm her eligibility for leave under the Family and Medical Leave Act (“FMLA”), must be “deemed” eligible, is invalid and may not be used to give otherwise FMLA-ineligible employees a cause of action for interference under the FMLA.

Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, 471 F.3d 6 (1st Cir. December 18, 2006)

An employee may count periods of prior employment towards the twelve months required for eligibility for FMLA leave. In Rucker, the United States Court of Appeals for the First Circuit considered, for the first time among the federal appellate courts, whether the twelve months of employment by the employer from whom medical leave under the Family and Medical Leave Act (FMLA) is requested must be consecutive.  The First Circuit relied on the interpretation of the FMLA provided by the United States Department of Labor (DOL), reasoning that when statutory language is ambiguous and legislative intent is unclear, it is appropriate to defer to the reasonable interpretation of the relevant agency.  Based on the DOL’s interpretation of its own FMLA-related regulations, the Court held that discontinuous periods of employment may be combined and counted toward the 12-month requirement.

Sarnowski v. Air Brooke Limousine, 2007 U.S. App. LEXIS 28668 (3rd. Cir., March 27, 2007).

Courts should broadly construe the FMLA notice requirement when determining whether an employee provided sufficient notice in order to invoke the benefits and protections of the Family Medical Leave Act (“FMLA”). Moreover, a plaintiff need not present expert medical testimony in order to be considered disabled within the meaning of New Jersey’s Law Against Discrimination (“LAD”). In Sarnowski, the United States Court of Appeals for the 3rd Circuit revisited both issues and reversed the trial court’s summary judgment in favor of the employer as to both claims.

Ma v. Chertoff, 547 F.3d 342 (2d Cir. 2008)

In Ma, the Second Circuit held that the Supreme Court’s holding in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U. S. 598 (2001), whereby a party, whose lawsuit brought about a “voluntary” change in the defendant's conduct but who failed to secure a judgment on the merits, is not a “prevailing party” entitled to attorneys fees under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. § 3601 et seq., also applies to suits filed under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A).

Gorman v. The Consolidated Edison Corporation, 488 F.3d 586 (2d Cir., May 30, 2007).

Certain procedures, which are otherwise considered an essential requirement to perform while working, are not compensable under the Fair Labor Standards Act (“FLSA”).  In Gorman, the United States Court of Appeals for the Second Circuit ruled that employees are not entitled to wage compensation for time spent on activities that are neither authorized by the employer nor an integral and indispensable part thereof.

Smith v. Tyco International, Inc., 2007 WL 1039067 (April 9,2007).

When interpreting a provision of a termination agreement with regard to vacation pay, a court may look at the employer’s general vacation policy to consider the guidelines of compensating an employee for vacation days. In Smith, the Superior Court of New Jersey-Appellate Division agreed with the lower court’s ruling when defendant, who paid plaintiff for his vacation days in proportion to his employment period after he was terminated from his employment, did not breach the termination agreement. The Appellate Division found that the actual language of the termination agreement, in conjunction with the employer’s general vacation policy, justified the vacation pay given to an employee in proportion to his actual employment period.

Sternadori v. SCS Healthcare Marketing, Inc., 2007 WL 710298 (E.D. Pa., March 6, 2007).

Under New Jersey Wage Payment Law, an employee may collect wages due for the labor or services rendered for an employer, but are not eligible to any statutory or punitive damages. In Sternadori, the United States District Court for the Eastern District of Pennsylvania confirmed well established law that even though an employee may bring an action against an employer for the employer’s breach of Wage Payment Law, the employee may not collect any further damages other than the wages due for his or her labor or service, except for the limited situation where the employer violated the law in bad faith or willfully.

Chakravarti v. Pegasus Consulting Group, Inc., 393 N.J. Super. 203 (App. Div. March 9, 2007).

Attorney’s Fees should not be reduced for efficient pleading and trial court rightfully struck Pegasus’ Answer for failure to answer discovery.  In Chakravarti, the appellate division found the trial court in error when they decided to reduce the Plaintiff’s attorney’s fees and felt that the Defendant received too much process with regard to their due process arguments concerning a proof hearing. 

Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. August 30, 2006)

Retaliation claims under Title VII do not require that the claimant was the victim of discrimination. In Moore, three white police officers claimed that their supervisors violated their right under Title VII of the Civil Rights Act of 1964 to be free from retaliation for opposing racial discrimination in the workplace. Overturning a grant of summary judgment for the employer, the United States Court of Appeals for the Third Circuit found that the three police officers raised triable issues as to whether they suffered unlawful retaliation, despite the fact that they themselves had not been discriminated against.

Davis v. Kraft Foods North America, 2006 U.S. Dist. LEXIS 87140 (E.D.Pa. November 30, 2006)

Joining a majority of courts across the country, an Eastern District of Pennsylvania district judge has ruled that the privilege of self-critical analysis is not generally recognized in discrimination cases. In Davis, the Court ruled that the self-critical analysis privilege, which exempts from disclosure any evaluative portions of an organization’s documents, is not recognized in the Third Circuit.  In jurisdictions where the privilege is recognized, it applies only in cases where a document is created in accordance with government requirements or for the purpose of self-improvement, the portions of the document sought to be disclosed are subjective or evaluative, and the need for confidentiality substantially outweighs the need for disclosure. A recent New Jersey Supreme Court decision demonstrates that the third criterion is seldom satisfied when claims of discrimination are involved.

Alleyne v. American Airlines, Inc., 548 F.3d 219 (2d Cir. 2008)

In Alleyne, the Second Circuit upheld the dismissal of a discrimination plaintiff’s claim as time-barred, holding that the statute of limitations was triggered by the employer’s allegedly discriminatory acts, and not when the consequences of those acts “became most painful.”

Mathirampuzha v. Potter, 548 F.3d 70 (2d Cir. 2008)

In Mathirampuzha, the Second Circuit held that an employer was entitled to summary judgment with respect to employment discrimination claims raised against it because, in part, the physical assault allegedly suffered by the plaintiff at the hands of a supervisor did not amount to an “adverse employment action.” Additionally, the Court held that the plaintiff’s retaliation and hostile work environment claims were barred due to his failure to seek administrative remedies, because these claims were not reasonably related to his administrative complaint arising from the physical assault. Finally, the Court held that the Secretary of Labor, and not the courts, have exclusive, unreviewable authority to determine the scope of coverage under the Federal Employees’ Compensation Act (“FECA”).

Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114 (2d Cir. 2008)

The United States Court of Appeals for the Second Circuit recently held that a union contract, which provided that disputes were not arbitrable if a charge is filed with the Connecticut Commission on Human Rights and Opportunities did not violate Title VII of the Civil Rights Act of 1964 (“Title VII”) and that the Union’s adherence to this provision did not constitute retaliation.

Makky v. Chertoff, 541 F.3d 205 (2008)

In a case of first impression, the Third Circuit, reviewing the standards for stating a claim for mixed-motive discrimination under Title VII of the Civil Rights Act, held that an employment discrimination claim proceeding under a mixed-motive theory must necessarily fail if it is irrefutable that the plaintiff fails to meet the minimum objective standards for the position.

Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008)

In Ricci v. DeStefano, 118 firefighters took a promotional exam for Captain and Lieutenant positions within the New Haven Fire Department. Although 41 applicants took the Captain examination, 16 of which were minority, only two minority applicants scored well enough to be eligible for promotion to Captain. For the Lieutenant examination, 77 applicants took the exam but none of the 34 minority applicants scored well enough to be eligible for promotion to Lieutenant. Subsequently, the New Haven Civil Service Board decided not to certify the results to avoid a potential employment discrimination lawsuit by non-white applicants who were not promoted. Eighteen applicants (17 white and one Hispanic) filed suit in U.S. District Court for the District of Connecticut to challenge the city’s decision not to certify the results and promote them. This was an unusual case since the plaintiffs attack not the use of an allegedly racially discriminatory exam but the refusal to use the results. Plaintiffs argued that the city used race-based considerations to non-certify the test results in violation of the law.

Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. March 21, 2008).

In Rweyemamu, the Second Circuit formally adopted the “ministerial exception” to employment cases, which prevents judicial inquiry into sensitive religious matters. By adopting the ministerial exception, the Second Circuit found that religious employees of religious organizations may not bring employment discrimination lawsuits. Moreover, although lay employees may bring employment discrimination suits against religious employers, a judicial fact finder may not inquire as to whether the employer’s proffered nondiscriminatory reason for the employment action was pretextual, where that reason is religious in nature.

Webb v. City of Philadelphia, 2009 U.S. App. LEXIS 7169 (3rd Cir. Apr. 7, 2009)

In Webb, the Third Circuit affirmed the District Court’s ruling that a police officer’s request to wear religious garb with her uniform could not be reasonably accommodated without imposing an undue burden upon the City of Philadelphia.  Kimberlie Webb, a Muslim police officer employed by the City of Philadelphia, filed a lawsuit against the City of Philadelphia on October 5, 2005.  The suit asserted three causes of action under Title VII, i.e., religious discrimination, retaliation/hostile work environment, and sex discrimination, and one cause of action under the Pennsylvania Religious Freedom Protection Act (RFPA), 71 Pa. Stat. Ann. § 2401.

Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 2009 U.S. LEXIS 870 (2009)

The United States Supreme Court recently held that when an employee discloses incidents of sexual harassment in response to questions posed during an internal investigation of another employee’s sexual harassment complaint it constitutes “opposition” to sexual harassment for purposes of Title VII’s anti-retaliation provision.

Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. August 30, 2006)

Retaliation claims under Title VII do not require that the claimant was the victim of discrimination. In Moore, three white police officers claimed that their supervisors violated their right under Title VII of the Civil Rights Act of 1964 to be free from retaliation for opposing racial discrimination in the workplace. Overturning a grant of summary judgment for the employer, the United States Court of Appeals for the Third Circuit found that the three police officers raised triable issues as to whether they suffered unlawful retaliation, despite the fact that they themselves had not been discriminated against.

Davis v. Kraft Foods North America, 2006 U.S. Dist. LEXIS 87140 (E.D.Pa. November 30, 2006)

Joining a majority of courts across the country, an Eastern District of Pennsylvania district judge has ruled that the privilege of self-critical analysis is not generally recognized in discrimination cases. In Davis, the Court ruled that the self-critical analysis privilege, which exempts from disclosure any evaluative portions of an organization’s documents, is not recognized in the Third Circuit.  In jurisdictions where the privilege is recognized, it applies only in cases where a document is created in accordance with government requirements or for the purpose of self-improvement, the portions of the document sought to be disclosed are subjective or evaluative, and the need for confidentiality substantially outweighs the need for disclosure. A recent New Jersey Supreme Court decision demonstrates that the third criterion is seldom satisfied when claims of discrimination are involved.

AT&T Corp. v. Noreen Hulteen, S.Ct. (2009); 2009 U.S. LEXIS 3470 (May 18, 2009)

The Supreme Court awarded a victory to corporate pension plans on May 18, when it ruled that they need not give equal credit for a female employee’s pregnancy leave as for other forms of disability where that leave was taken prior to the Pregnancy Discrimination Act’s (“PDA”) effective date in 1979.  The decision applies only to pension systems that had pre-PDA policies of granting less credit for pregnancy leave than for other disability leave.

Ledbetter v. The Goodyear Tire & Rubber Company, Inc., 2007 U.S. Lexis 6295  (May 29, 2007).

Even if the effects of an allegedly unlawful practice persist long afterward, a Title VII plaintiff must file an EEOC claim within 180 days of the practice itself. In Ledbetter, the Supreme Court of the United States held in a 5-4 decision that the plaintiff, who had argued that the effects of discriminatory decisions pertaining to her salary had continued with each paycheck she was issued, had filed her claim with the Equal Employment Opportunity Commission too late to prevail on her Title VII lawsuit. The majority held that Congress intended that this short period would encourage the swift resolution of such disputes.

Iyer v. Everson, et al., 2007 U.S. App. LEXIS 18512 (3d Cir., August 3, 2007).

Where employment discrimination plaintiffs are unable to provide direct evidence of discrimination, the employer has the burden of overcoming the accusations of discrimination it would not otherwise have.  In Iyer the United States Court of Appeals for the Third Circuit employed the well-established burden-shifting analysis under McDonnell Douglas v. Green (“McDonnell Douglas”), where the plaintiff could present nothing more than circumstantial evidence of illegal discrimination.

Klawitter v. City of Trenton, 395 N.J. Super. 302 (App. Div., July 31, 2007).

In the absence of an articulated, overall affirmative action plan to rectify racial imbalances, the use of race as a “plus factor” in employment decisions violates New Jersey’s Law Against Discrimination (LAD).  In Klawitter, the Appellate Division reexamined the interplay between employment decisions aimed at rectifying racial imbalances on the one hand, and the prohibition, under New Jersey’s Law Against Discrimination, against making an employment decision “because” of race. 

Salamon v. Our Lady of Victory Hosp., 2008 U.S. App. LEXIS 2064 (2nd Cir. Jan. 16, 2008).

The right to control how a particular assignment is accomplished is a critical element to establishing whether an individual is an independent contractor, or an employee entitled to bring a claim for workplace discrimination. In Salamon, the Second Circuit addressed this issue in the context of claims for sexual harassment brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York Human Rights Law (“NYHRL”).

Holcomb v. Iona College, 2008 U.S. App. LEXIS 6897 (2d Cir. April 1, 2008).

In this appeal, the United States Court of Appeals for the Second Circuit held that a white employee claiming that he suffered an adverse employment action because of his interracial marriage is permitted to have his case heard in front of a jury, as he did indeed allege discrimination under Title VII. This was the first time that the Second Circuit has rejected a more restrictive reading of Title VII and departed from other courts’ holdings that discrimination based on association with persons of another race is not cognizable. The Second Circuit reasoned that an employee, suffering from an adverse employment action because of employer disproval of an interracial association (in this case, marriage), has indeed suffered from discrimination due to the employee’s own race.

Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. March 21, 2008).

In Rweyemamu, the Second Circuit formally adopted the “ministerial exception” to employment cases, which prevents judicial inquiry into sensitive religious matters. By adopting the ministerial exception, the Second Circuit found that religious employees of religious organizations may not bring employment discrimination lawsuits. Moreover, although lay employees may bring employment discrimination suits against religious employers, a judicial fact finder may not inquire as to whether the employer’s proffered nondiscriminatory reason for the employment action was pretextual, where that reason is religious in nature.

Beyer v. County of Nassau, 524 F.3d 160 (2d Cir. April 23, 2008).

The United States Court of Appeals for the Second Circuit recently held that a denial of a transfer request may constitute an “adverse employment action” for purposes of Title VII of the Civil Rights Act, if the transfer sought (and denied) would have involved an objective and significant improvement in the terms, conditions or privileges of employment.

Estate of Schwing v. The Lilly Health Plan, 2009 U.S. App. LEXIS 7871 (3d Cir. April 14, 2009)

Prior to the Supreme Court’s recent decision in Metropolitan Life Ins. Co. v. Glenn, 138 S.Ct. 2343 (2008), the Third Circuit held that courts deciding an ERISA plan participant’s appeal from the plan administrator’s denial of benefits should apply a “sliding scale” standard of review, in which the level of deference accorded the administrator’s decision would change depending on the presence of conflicts of interest affecting plan administration. In Schwing, the Third Circuit recognized that, in light of Glenn, this “sliding scale” approach is no longer valid. Instead, the Court announced a new standard of review, whereby courts should apply a deferential abuse of discretion standard of review across the board and consider any conflict of interest as one of several factors in considering whether the plan administrator abused its discretion.

McCauley v. First Unum Life Ins. Co., 551 F.3d 126 (2d Cir. 2008)

The Second Circuit Court of Appeals has recognized that its existing standard of review for ERISA disputes has been abrogated by the Supreme Court’s decision in Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008), and has announced a new standard for judicial review of such disputes. While the previous standard of review provided for de novo judicial review of an ERISA administrator's decision when it is shown that a conflict of interest actually influenced that decision, the new standard merely provides that such a conflict of interest is to be “weighed as a factor” in determining whether there was an abuse of discretion.

Pell v. E.I. DuPont De Nemours & Co. Inc., 539 F.3d 292 (3d Cir. 2008)

In Pell v. E.I. DuPont DeNemours & Co. Inc., the Third Circuit held that an ERISA fiduciary who made repeated misrepresentations to an employee regarding the terms and conditions of his or her ERISA plan may be held liable for equitable relief.

Edgar v. Avaya Inc., 503 F.3d 340 (3d. Cir., September 26, 2007).

A fiduciary who invests the funds of an employee in the employer’s stock, but is neither required nor simply permitted to do so, establishes a rebuttable presumption that he/she acted consistently with the Employee Retirement Income Security Act (“ERISA”).  In Edgar, the United States Court of Appeals for the 3rd Circuit reviewed the acts of a fiduciary of an Employee Stock Ownership Plan (“ESOP”), and ruled that, under a standard of review atypically applied in trusts, the fiduciary did not violate ERISA.

Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770 (3d Cir., May 14, 2007).

The time within which a terminated employee may bring claims under the Employee Retirement Income Security Act (“ERISA”) begins to run when the employee is notified of the termination. In Jakimas, the United States Court of Appeals for the Third Circuit ruled that when employees are given notice that their pension benefits will be taken away at some certain date, they have two years from the date of notice, not the actual date of termination, to file a claim.

Graden v.  Conexant Systems, Inc., 2007 U.S. App. Lexis 18179 (3d Cir., July 31, 2007).

After looking into the definition of “benefit,” the Third Circuit Court of Appeals found that a previous employee did in fact have grounds to sue as a plan participant.  In Graden, the United States Court of Appeals for the Third Circuit recently held that a former employee, who had cashed out of his employer’s 401(k) plan, has standing under the Employee Retirement Income Security Act of 1974, 29 U.S.C.S. § 1001 et seq. ("ERISA") to sue the plan administrator for mismanaging plan assets.

Chakravarti v. Pegasus Consulting Group, Inc., 393 N.J. Super. 203 (App. Div. March 9, 2007).

Attorney’s Fees should not be reduced for efficient pleading and trial court rightfully struck Pegasus’ Answer for failure to answer discovery.  In Chakravarti, the appellate division found the trial court in error when they decided to reduce the Plaintiff’s attorney’s fees and felt that the Defendant received too much process with regard to their due process arguments concerning a proof hearing. 

Strom v. Siegel Fenchel & Peddy, P.C., 2007 U.S.App. Lexis 19321 (2nd Cir., August 15, 2007).

Under pension plan review procedures, an employer who refuses to provide a claimant with information concerning eligibility or administrative review rights under the plan is barred from raising a “failure to exhaust all remedies” defense.  Before an appeal of an administrative decision can be reviewed in Federal Court, the claimant must have exhausted all administrative remedies prior to making the application.  In Strom, the U.S. Court of Appeals for the Second Circuit held that a claimant who is denied benefits and fails to exhaust all administrative remedies set forth in the benefits plan is not barred from appealing the decision to Federal Court if the plan administrator failed to adequately inform the claimant of his rights to have the decision reviewed and the time limits applicable to such procedures.

Edgar v. Avaya Inc., 503 F.3d 340 (3d. Cir., September 26, 2007).

A fiduciary who invests the funds of an employee in the employer’s stock, but is neither required nor simply permitted to do so, establishes a rebuttable presumption that he/she acted consistently with the Employee Retirement Income Security Act (“ERISA”).  In Edgar, the United States Court of Appeals for the 3rd Circuit reviewed the acts of a fiduciary of an Employee Stock Ownership Plan (“ESOP”), and ruled that, under a standard of review atypically applied in trusts, the fiduciary did not violate ERISA.

Post v. Hartford Ins. Co., 2007 U.S. App. Lexis 21911 (3d Cir., September 13, 2007).

In an action for wrongful denial of ERISA benefits under §1132(a)(1)(B), a plan administrator’s use of aggressive tactics towards the plan beneficiary warrants further heightening of the standard of review.  In Post, the U.S. Court of Appeals for the Third Circuit held that the District Court erred in using only slightly heightened review when the number of irregularities coupled with the administrator’s aggressive posture favored amore stringent standard of review.

LaRue v. DeWolff, Boburg & Assocs., Inc., 552 U.S.___; 128 S. Ct. 1020 (Feb. 20, 2008).

An ERISA plan participant, the value of whose personal account was impaired due to acts or omissions of the plan administrator, may bring a claim under ERISA, § 502(a)(2), for breach of fiduciary duty and recover damages.

Best v. C&M Door Controls, Inc., 402 N.J. Super. 229 (App. Div. 2008)

In this appeal, the Appellate Division considered the interplay between two competing public policies, each of which are fostered by awarding legal fees to the prevailing party. On the one hand, the New Jersey Legislature has adopted certain fee-shifting statutes, in this case the Prevailing Wage Act (“PWA”), N.J.S.A. 34:11-56.25 to -56.47, in order to ensure that plaintiffs with bona fide claims are able to find lawyers to represent them, to attract competent counsel in cases involving statutory rights, and to ensure justice for all citizens. On the other hand, to encourage early out-of-court settlements, the New Jersey Supreme Court adopted the offer of judgment rule, Rule 4:58 (the “Rule”), permitting  an award of legal fees and costs to a prevailing party whose offer of judgment has been rejected by the other side.

Best v. C&M Door Controls, Inc., 2009 N.J. LEXIS 1000 (2009)

The Supreme Court of New Jersey recently held that a defendant/employer cannot be awarded attorney’s fees under New Jersey Court Rule 4:58 (the offer-of-judgment rule) in a case involving the New Jersey Conscientious Employee Protection Act (“CEPA”) and the Prevailing Wage Act (“PWA”), however a plaintiff/employee’s rejection of a reasonable settlement offer may be taken into consideration in determining the amount of attorney’s fee’s to be warded to a prevailing employee.

Michael v. Robert Wood Johnson University Hospital, 2008 N.J. Super. LEXIS 13 (NJ App. Div. Jan. 15, 2008).

A prevailing defendant may be awarded attorney’s fees in an action brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the “LAD”), only if it can show that the losing plaintiff brought the claim in “bad faith.” N.J.S.A. 10:5-27.1. In Michael, the Appellate Division held that “bad faith,” in this somewhat unusual context, does not imply that the suit was initiated for a dishonest purpose, but rather equates to “a reckless disregard or purposeful obliviousness of the known facts.” Moreover, the Appellate Division instructed that, in determining what constitutes a “reasonable” award of attorney’s fees, the trial court should take into account the losing plaintiff’s ability to pay, as well as “the extent to which plaintiff pursued the matter because of her own views or . . . relied, either exclusively or partially, upon the advice of counsel.”

Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29 (N.J. March 11, 2008).

The Supreme Court of New Jersey, addressing the “traumatic event” standard under the accidental disability retirement provisions of the State Police Retirement System (SPRS) and the Police and Firemen’s Retirement System (PFRS), has held that an applicant who suffered a permanent mental disability as a result of a mental stressor without any physical impact (a so-called “mental-mental” injury) may qualify for accidental disability retirement benefits.

Wood v. Pittsford Central School District, 2008 U.S. App. LEXIS 24733 (2d Cir. Dec. 8, 2008).

In Wood v. Pittsford Central School District, the Second Circuit Court of Appeals reversed the district court’s judgment granting summary judgment in favor of the defendants, based, in part, on evidence that they had intentionally destroyed employee records in apparent violation of EEOC regulations. The Court noted that this was sufficient to permit a spoliation inference and to create a genuine issue of material fact as to whether the defendants’ proffered reason for the employee’s termination was, in fact, a pretext.

Mathirampuzha v. Potter, 548 F.3d 70 (2d Cir. 2008)

In Mathirampuzha, the Second Circuit held that an employer was entitled to summary judgment with respect to employment discrimination claims raised against it because, in part, the physical assault allegedly suffered by the plaintiff at the hands of a supervisor did not amount to an “adverse employment action.” Additionally, the Court held that the plaintiff’s retaliation and hostile work environment claims were barred due to his failure to seek administrative remedies, because these claims were not reasonably related to his administrative complaint arising from the physical assault. Finally, the Court held that the Secretary of Labor, and not the courts, have exclusive, unreviewable authority to determine the scope of coverage under the Federal Employees’ Compensation Act (“FECA”).

Roy M. Victor v. State of New Jersey, New Jersey State Police, et al., June 2009,401 N.J. Super. 596

The Appellate Division held that a plaintiff must prove that he or she suffered from an adverse employment action when an accommodation for a disability is denied.

Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008)

The provisions setting forth the general prohibition of age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 623(a)-(c), (e), are subject to a separate provision, § 623(f), creating exemptions for employer practices “otherwise prohibited under subsections (a), (b), (c), or (e).” This provision sets forth two exemptions, for practices based on “bona fide occupational qualifications” (BFOQ) or on “reasonable factors other than age” (RFOA), stating: “It shall not be unlawful for an employer . . . to take any action otherwise prohibited under subsections (a), (b), (c), or (e) . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.” In Meacham v. Knolls Atomic Power Laboratory, the United States Supreme Court held that this RFOA exemption is an affirmative defense, and that an ADEA defendant seeking to avail itself of this exemption bears the burden of proof: it “must not only produce evidence raising the defense, but also persuade the factfinder of its merit.”

Kelly v. Moser, Patterson & Sheridan, LLP, 2009 U.S. App. LEXIS 22352 (3d Cir. Oct. 9, 2009)

Absent evidence that age was a “but-for” factor in an employer’s decision to terminate an employee, the mere fact that age may have been a secondary consideration is insufficient to sustain a claim under the Age Discrimination in Employment Act (“ADEA”) as a matter of law.

Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770 (3d Cir., May 14, 2007).

The time within which a terminated employee may bring claims under the Employee Retirement Income Security Act (“ERISA”) begins to run when the employee is notified of the termination. In Jakimas, the United States Court of Appeals for the Third Circuit ruled that when employees are given notice that their pension benefits will be taken away at some certain date, they have two years from the date of notice, not the actual date of termination, to file a claim.

Folcher v. Appalachian Insulation Supply, Inc., 2007 U.S. Dist. LEXIS 37992 (E.D.Pa., May 24, 2007).

Isolated comments about retirement, without a suggestion that an employee’s value has diminished because of age, are not discriminatory.  An employer may make reasonable inquiries into an employee’s retirement plans, and suggesting retirement to an employee of retirement age who is not meeting expectations does not provide a reasonable basis for inferring age discrimination.  In Folcher, the District Court granted summary judgment in favor of an employer, its president, and a former employee, holding that Folcher, a salesman who alleged that he was fired due to his age and was replaced by a younger man, failed to come forward with sufficient evidence for a reasonable jury to find in his favor.

Iyer v. Everson, et al., 2007 U.S. App. LEXIS 18512 (3d Cir., August 3, 2007).

Where employment discrimination plaintiffs are unable to provide direct evidence of discrimination, the employer has the burden of overcoming the accusations of discrimination it would not otherwise have.  In Iyer the United States Court of Appeals for the Third Circuit employed the well-established burden-shifting analysis under McDonnell Douglas v. Green (“McDonnell Douglas”), where the plaintiff could present nothing more than circumstantial evidence of illegal discrimination.

Pyett v. Penn Building Co., 2007 U.S. App. Lexis 18242 (2nd Cir., August 1, 2007).

The U.S. Court of Appeals for the Second Circuit has held that a clause in a collective bargaining agreement that would require a claimant to resolve a claim of age discrimination in arbitration rather than through the courts system is unenforceable.  In Peyett, the Court based its ruling on a previous decision, Rogers v. NYU, 220 F.3d 73 (2nd Cir.2000).  In the this decision, like Peyett, the Court recognized that, under a collective bargaining agreement, there are potential risks of conflict of interest between the union and the individual and that the interest of the individual may be subordinated to the collective interests of all employees in the bargaining unit.  Thus, the Court holds that an arbitration clause in a collective bargaining agreement does not reflect a worker’s voluntary waiver of his right to a federal forum for his claims.

Michael v. Robert Wood Johnson University Hospital, 2008 N.J. Super. LEXIS 13 (NJ App. Div. Jan. 15, 2008).

A prevailing defendant may be awarded attorney’s fees in an action brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the “LAD”), only if it can show that the losing plaintiff brought the claim in “bad faith.” N.J.S.A. 10:5-27.1. In Michael, the Appellate Division held that “bad faith,” in this somewhat unusual context, does not imply that the suit was initiated for a dishonest purpose, but rather equates to “a reckless disregard or purposeful obliviousness of the known facts.” Moreover, the Appellate Division instructed that, in determining what constitutes a “reasonable” award of attorney’s fees, the trial court should take into account the losing plaintiff’s ability to pay, as well as “the extent to which plaintiff pursued the matter because of her own views or . . . relied, either exclusively or partially, upon the advice of counsel.”

Gomez-Perez v. Potter, 553 U.S. ___ (U.S. May 27, 2008).

In a 6-3 split decision, the United States Supreme Court held that the federal sector provision of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a(a), prohibits retaliation against a federal employee for complaining about age discrimination.

Sprint v. Mendelsohn, 128 S.Ct.1140 (Feb. 26, 2008)

In Sprint v. Mendelsohn, the U.S. Supreme Court held that, in an employment discrimination case, testimony of nonparties as to discrimination they incurred at the hands of supervisors may be admissible, even where those supervisors played no role in the adverse employment action implicated by the plaintiff’s lawsuit. Rejecting the notion of per se admissibility or per se inadmissibility, the Court instead stated that the admissibility of such evidence “is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The Court further stated that this kind of fact-intensive, context-specific inquiry is best performed by trial court in the first instance.

Godfrey v. Princeton Theological Seminary, 196 N.J. 178 (2008)

In Godfrey v. Princeton Theological Seminary, the Supreme Court of New Jersey held that repeated, unwelcome and “socially inapt” conduct by a person who is “socially tone deaf” does not necessarily amount to sexual harassment under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the “LAD”). A person has, at minimum, an obligation to simply tell an unwelcome pursuer that they are not romantically interested in him (or her). “To allow the LAD to replace such basic human interaction trivializes the purpose for which the LAD was established.”

Following the U.S. Supreme Court’s lead in Ledbetter v. Goodyear Tire & Rubber Co., the appellate court in New Jersey has ruled that plaintiffs suing for wage discrimination in New Jersey cannot rely on the “continuous trigger” theory, by which each paycheck restarts the running of the statute of limitations.

Godfrey v. Princeton Theological Seminary, No. A-1957-05T2 (App. Div. Mar. 15, 2007).

An alumnus’s unwanted but non-sexual advances to two female students do not, by themselves, establish a sexual harassment claim under New Jersey Law Against Discrimination (LAD). In Godfrey, a divided panel of the Superior Court of New Jersey - Appellate Division ruled that the alumnus’s communications with the students, which were not accompanied by sexual comments, innuendos, or references to their bodies, were not severe or pervasive enough for a reasonable woman to find the environment hostile. However, the dissenting judge contended that, given the totality of the circumstances, insistent unsolicited contacts could be severe enough to cause a reasonable woman to believe that she is in a hostile environment. 

Godfrey is the first case since the New Jersey Supreme Court decision in L.W. v. Toms River Regional Schools Board of Education, where the Court held that the LAD also applies to a sexual harassment case in an educational context, to address the issue of what constitutes sexual harassment in an educational setting.  However, as the split opinion in Godfrey indicated, the New Jersey judiciary needs a more concrete standard as to the extent that the LAD can apply to sexual harassment cases in a school environment.  If the plaintiffs exercise their right to appeal from this split decision, the Supreme Court will have another opportunity to clarify how far the LAD is meant to reach.

Ledbetter v. The Goodyear Tire & Rubber Company, Inc., 2007 U.S. Lexis 6295  (May 29, 2007).

Even if the effects of an allegedly unlawful practice persist long afterward, a Title VII plaintiff must file an EEOC claim within 180 days of the practice itself. In Ledbetter, the Supreme Court of the United States held in a 5-4 decision that the plaintiff, who had argued that the effects of discriminatory decisions pertaining to her salary had continued with each paycheck she was issued, had filed her claim with the Equal Employment Opportunity Commission too late to prevail on her Title VII lawsuit. The majority held that Congress intended that this short period would encourage the swift resolution of such disputes.

Iyer v. Everson, et al., 2007 U.S. App. LEXIS 18512 (3d Cir., August 3, 2007).

Where employment discrimination plaintiffs are unable to provide direct evidence of discrimination, the employer has the burden of overcoming the accusations of discrimination it would not otherwise have.  In Iyer the United States Court of Appeals for the Third Circuit employed the well-established burden-shifting analysis under McDonnell Douglas v. Green (“McDonnell Douglas”), where the plaintiff could present nothing more than circumstantial evidence of illegal discrimination.

Salamon v. Our Lady of Victory Hosp., 2008 U.S. App. LEXIS 2064 (2nd Cir. Jan. 16, 2008).

The right to control how a particular assignment is accomplished is a critical element to establishing whether an individual is an independent contractor, or an employee entitled to bring a claim for workplace discrimination. In Salamon, the Second Circuit addressed this issue in the context of claims for sexual harassment brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York Human Rights Law (“NYHRL”).

Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358 (3d Cir. May 30, 2008).

The United States Court of Appeals for the Third Circuit recently held that the protections afforded to pregnant women under Title VII of the  Civil Rights Act, 42 U.S.C. § 2000 et seq., as modified by the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k), also extend to women who have an abortion.

Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. August 30, 2006)

Retaliation claims under Title VII do not require that the claimant was the victim of discrimination. In Moore, three white police officers claimed that their supervisors violated their right under Title VII of the Civil Rights Act of 1964 to be free from retaliation for opposing racial discrimination in the workplace. Overturning a grant of summary judgment for the employer, the United States Court of Appeals for the Third Circuit found that the three police officers raised triable issues as to whether they suffered unlawful retaliation, despite the fact that they themselves had not been discriminated against.

Davis v. Kraft Foods North America, 2006 U.S. Dist. LEXIS 87140 (E.D.Pa. November 30, 2006)

Joining a majority of courts across the country, an Eastern District of Pennsylvania district judge has ruled that the privilege of self-critical analysis is not generally recognized in discrimination cases. In Davis, the Court ruled that the self-critical analysis privilege, which exempts from disclosure any evaluative portions of an organization’s documents, is not recognized in the Third Circuit.  In jurisdictions where the privilege is recognized, it applies only in cases where a document is created in accordance with government requirements or for the purpose of self-improvement, the portions of the document sought to be disclosed are subjective or evaluative, and the need for confidentiality substantially outweighs the need for disclosure. A recent New Jersey Supreme Court decision demonstrates that the third criterion is seldom satisfied when claims of discrimination are involved.

Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008)

In Ricci v. DeStefano, 118 firefighters took a promotional exam for Captain and Lieutenant positions within the New Haven Fire Department. Although 41 applicants took the Captain examination, 16 of which were minority, only two minority applicants scored well enough to be eligible for promotion to Captain. For the Lieutenant examination, 77 applicants took the exam but none of the 34 minority applicants scored well enough to be eligible for promotion to Lieutenant. Subsequently, the New Haven Civil Service Board decided not to certify the results to avoid a potential employment discrimination lawsuit by non-white applicants who were not promoted. Eighteen applicants (17 white and one Hispanic) filed suit in U.S. District Court for the District of Connecticut to challenge the city’s decision not to certify the results and promote them. This was an unusual case since the plaintiffs attack not the use of an allegedly racially discriminatory exam but the refusal to use the results. Plaintiffs argued that the city used race-based considerations to non-certify the test results in violation of the law.

Holcomb v. Iona College, 2008 U.S. App. LEXIS 6897 (2d Cir. April 1, 2008).

In this appeal, the United States Court of Appeals for the Second Circuit held that a white employee claiming that he suffered an adverse employment action because of his interracial marriage is permitted to have his case heard in front of a jury, as he did indeed allege discrimination under Title VII. This was the first time that the Second Circuit has rejected a more restrictive reading of Title VII and departed from other courts’ holdings that discrimination based on association with persons of another race is not cognizable. The Second Circuit reasoned that an employee, suffering from an adverse employment action because of employer disproval of an interracial association (in this case, marriage), has indeed suffered from discrimination due to the employee’s own race.

Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. August 30, 2006)

Retaliation claims under Title VII do not require that the claimant was the victim of discrimination. In Moore, three white police officers claimed that their supervisors violated their right under Title VII of the Civil Rights Act of 1964 to be free from retaliation for opposing racial discrimination in the workplace. Overturning a grant of summary judgment for the employer, the United States Court of Appeals for the Third Circuit found that the three police officers raised triable issues as to whether they suffered unlawful retaliation, despite the fact that they themselves had not been discriminated against.

Davis v. Kraft Foods North America, 2006 U.S. Dist. LEXIS 87140 (E.D.Pa. November 30, 2006)

Joining a majority of courts across the country, an Eastern District of Pennsylvania district judge has ruled that the privilege of self-critical analysis is not generally recognized in discrimination cases. In Davis, the Court ruled that the self-critical analysis privilege, which exempts from disclosure any evaluative portions of an organization’s documents, is not recognized in the Third Circuit.  In jurisdictions where the privilege is recognized, it applies only in cases where a document is created in accordance with government requirements or for the purpose of self-improvement, the portions of the document sought to be disclosed are subjective or evaluative, and the need for confidentiality substantially outweighs the need for disclosure. A recent New Jersey Supreme Court decision demonstrates that the third criterion is seldom satisfied when claims of discrimination are involved.

Iyer v. Everson, et al., 2007 U.S. App. LEXIS 18512 (3d Cir., August 3, 2007).

Where employment discrimination plaintiffs are unable to provide direct evidence of discrimination, the employer has the burden of overcoming the accusations of discrimination it would not otherwise have.  In Iyer the United States Court of Appeals for the Third Circuit employed the well-established burden-shifting analysis under McDonnell Douglas v. Green (“McDonnell Douglas”), where the plaintiff could present nothing more than circumstantial evidence of illegal discrimination.

Klawitter v. City of Trenton, 395 N.J. Super. 302 (App. Div., July 31, 2007).

In the absence of an articulated, overall affirmative action plan to rectify racial imbalances, the use of race as a “plus factor” in employment decisions violates New Jersey’s Law Against Discrimination (LAD).  In Klawitter, the Appellate Division reexamined the interplay between employment decisions aimed at rectifying racial imbalances on the one hand, and the prohibition, under New Jersey’s Law Against Discrimination, against making an employment decision “because” of race. 

Holcomb v. Iona College, 2008 U.S. App. LEXIS 6897 (2d Cir. April 1, 2008).

In this appeal, the United States Court of Appeals for the Second Circuit held that a white employee claiming that he suffered an adverse employment action because of his interracial marriage is permitted to have his case heard in front of a jury, as he did indeed allege discrimination under Title VII. This was the first time that the Second Circuit has rejected a more restrictive reading of Title VII and departed from other courts’ holdings that discrimination based on association with persons of another race is not cognizable. The Second Circuit reasoned that an employee, suffering from an adverse employment action because of employer disproval of an interracial association (in this case, marriage), has indeed suffered from discrimination due to the employee’s own race.

Cutler v. Dorn, 390 N.J. Super. 238 (App. Div. February 2, 2007).

Sporadic teasing in the workplace will not support a claim of hostile work environment under New Jersey’s Law Against Discrimination (NJLAD). In Cutler, the New Jersey Superior Court – Appellate Division set aside a jury verdict in favor of a Jewish police officer who complained that other officers’ anti-Semitic remarks and actions had created a hostile work environment. The Court ruled that one comment overheard by the plaintiff, though unsettling, was not “extreme and outrageous,” and the totality of the circumstances indicated that other remarks occurred in a context of good-natured pranks and joking, in which the plaintiff participated from time to time. Therefore, the Court found that the plaintiff had not proven the existence of a hostile work environment.

Cutler v. Dorn, 196 N.J. 419 (2008)

Reversing the Appellate Division and assessing, for the first time, the sufficiency of a plaintiff’s proofs in the context of an essentially religion-based hostile work environment claim, the New Jersey Supreme Court recently held that, consistent with New Jersey’s strong policy against any form of discrimination in the workplace, the threshold for demonstrating a religion-based, discriminatory hostile work environment under New Jersey’s Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 to -49, cannot be any higher or more stringent than the threshold that applies to sexually or racially hostile workplace environment claims.

Cutler v. Dorn, 390 N.J. Super. 238 (App. Div. February 2, 2007).

Sporadic teasing in the workplace will not support a claim of hostile work environment under New Jersey’s Law Against Discrimination (NJLAD). In Cutler, the New Jersey Superior Court – Appellate Division set aside a jury verdict in favor of a Jewish police officer who complained that other officers’ anti-Semitic remarks and actions had created a hostile work environment. The Court ruled that one comment overheard by the plaintiff, though unsettling, was not “extreme and outrageous,” and the totality of the circumstances indicated that other remarks occurred in a context of good-natured pranks and joking, in which the plaintiff participated from time to time. Therefore, the Court found that the plaintiff had not proven the existence of a hostile work environment.

Iyer v. Everson, et al., 2007 U.S. App. LEXIS 18512 (3d Cir., August 3, 2007).

Where employment discrimination plaintiffs are unable to provide direct evidence of discrimination, the employer has the burden of overcoming the accusations of discrimination it would not otherwise have.  In Iyer the United States Court of Appeals for the Third Circuit employed the well-established burden-shifting analysis under McDonnell Douglas v. Green (“McDonnell Douglas”), where the plaintiff could present nothing more than circumstantial evidence of illegal discrimination.

Kwiatkowski v. Merrill Lynch, Docket No. A-2270-06T1 (App. Div. Aug. 13, 2008), cert. denied, 197 N.J. 259 (2008)

The New Jersey Appellate Division recently held that a single comment of “stupid fag” which was made to a homosexual employee by his direct supervisor may be sufficient to create a hostile work environment, even though no one else heard the comment. The facts of the case were as follows:

Cicchetti v. Morris County Sheriff’s Office, 194 N.J. 563 (2008).

A recent decision by the New Jersey Supreme Court, Cichetti addresses two distinct and important issues in the context of employment discrimination claims under the New Jersey Law Against Discrimination (LAD).  The first aspect of the decision makes clear that after-acquired evidence of employee resume fraud can only serve as a bar to economic damages if the employer can prove that it would not have hired the employee in the first place but for the resume fraud, and that after-acquired evidence of resume fraud can never serve as a bar or limitation on non-economic damages.  The second aspect of the decision clarifies that supervisors may be held personally liable for acts of discrimination only if they “actively and purposefully” assist the acts of discrimination. 

Victor v. State of New Jersey, 401 N.J. Super. 596 (App. Div. 2008)

In general, a disabled plaintiff suing under the New Jersey Law Against Discrimination (“LAD”) must show: “(1) the plaintiff was handicapped or disabled within the meaning of the statute; (2) the plaintiff was qualified to perform the essential functions of the position of employment, with or without accommodation; (3) the plaintiff suffered adverse employment action because of the handicap or disability; and (4) the employer sought another to perform the same work after the plaintiff had been removed from the position.” N.J.S.A. §§ 10:5-1 to 49. In Victor v. State of New Jersey, the New Jersey Appellate Division held, as a matter of first impression, that a disabled plaintiff proceeding on a failure-to-accommodate theory must affirmatively prove that he suffered an adverse employment action as a result of his employer’s failure to provide a reasonable accommodation.

Roy M. Victor v. State of New Jersey, New Jersey State Police, et al., June 2009,401 N.J. Super. 596

The Appellate Division held that a plaintiff must prove that he or she suffered from an adverse employment action when an accommodation for a disability is denied.

Raspa v. Office of the Sheriff of the County of Gloucester, 191 N.J. 323 (June 12, 2007).

An employee must possess the bona fide occupational qualifications for the job position that the employee seeks to occupy in order to trigger an employer’s obligation to reasonably accommodate the employee to the extent required by the Law Against Discrimination (LAD).  An Employer may reasonably limit light duty assignments to those employees whose disabilities are temporary.  The availability of light duty assignments for temporary disabled employees does not give rise to any additional duty on the part of the employer to assign a permanently disabled employee to an otherwise restricted light duty assignment.  In Raspa, the Supreme Court reversed the ruling of the Appellate Division finding that, although broad, the goal of the LAD is to “eradicate the cancer of discrimination,” is not without boundary.  The court found that the LAD prohibits discrimination against any person due to any such disability or unlawful employment practice, unless the nature and extent of the disability reasonably prevents the performance of the employment.

Dennis v. Bd. of Trs., Pub. Emples. Ret. Sys., 394 N.J. Super. 484 (App. Div., July 11, 2007).

There is some confusion as to what constitutes a “traumatic event” even among those from whom guidance is sought.  In Dennis, the New Jersey Superior Court, Appellate Division, ruled that the fact that an individual who causes an injury is of average size and strength is not a basis for finding that the incident causing the injury is not a “traumatic event.”

Sarnowski v. Air Brooke Limousine, 2007 U.S. App. LEXIS 28668 (3rd. Cir., March 27, 2007).

Courts should broadly construe the FMLA notice requirement when determining whether an employee provided sufficient notice in order to invoke the benefits and protections of the Family Medical Leave Act (“FMLA”). Moreover, a plaintiff need not present expert medical testimony in order to be considered disabled within the meaning of New Jersey’s Law Against Discrimination (“LAD”). In Sarnowski, the United States Court of Appeals for the 3rd Circuit revisited both issues and reversed the trial court’s summary judgment in favor of the employer as to both claims.

Galli v. New Jersey Meadowlands Commission, 490 F.3d 265 (3d Cir., June 20, 2007).

An employer violates an employee’s First Amendment Rights and freedom of speech when they terminate an employee who does not claim a political party and holds a non-policy making position.  In Galli, the Third Circuit Court of Appeals decided that an employee’s First Amendment Rights and freedom of speech were violated when they considered whether the employer was aware that the employee failed to show public support for its officials and the political party in power. 

Galli v. New Jersey Meadowlands Commission, 2007 U.S.App. LEXIS 14473 (June 20, 2007).

An employer violates an employee’s First Amendment Rights and freedom of speech when they terminate an employee who does not claim a political party and holds a non-policy making position.  In Galli, the Third Circuit Court of Appeals decided that an employee’s First Amendment Rights and freedom of speech were violated when they considered whether the employer was aware that the employee failed to show public support for its officials and the political party in power. 

Spinks v. Township of Clinton, 402 N.J. Super. 465 (N.J. App. Div. 2008)

In Spinks v. Township of Clinton, former police officers, who had pled guilty to criminal charges for falsification of records, sued the Township and its Chief of Police, alleging unlawful retaliation in violation of the New Jersey Law Against Discrimination (“LAD”) and 42 U.S.C. § 1983, and age discrimination in violation of the LAD. The Appellate Division, affirming summary judgment in favor of the defendants, held: (1) the Chief of Police was protected by qualified immunity; (2) the plaintiffs’ prior challenges to the Township’s promotion process is not protected speech for purposes of the § 1983 claim; and (3) the Township’s investigation of the plaintiffs, leading to a criminal plea bargain, is not an “adverse employment action” for purposes of the LAD. In so doing, the Appellate Division emphasized that the internal personnel policies of a public employer are not “matters of public concern” giving rise to a First Amendment retaliation claim  - even if an employee is punished for protesting those policies.

Circle Bolt & Nut Co, v. Pa. Human Relations Comm’n, 954 A.2d 1265 (Pa. Commw. Ct. 2008)

The Commonwealth Court of Pennsylvania recently affirmed the determination of the Pennsylvania Human Relations Commission which found that, although a complainant failed to establish that she was the victim of sex-based discrimination at work, she nevertheless proved that she was unlawfully retaliated against as a result of her opposition to the complained-about workplace conduct.

14 Penn Plaza LLC Et Al., v. Steven Pyett Et Al., 2009 U.S. LEXIS 2497

In this 5-4 decision, the United States Supreme Court, with Justice Thomas writing for the majority, held that a provision in a collective bargaining agreement (CBA) that required the arbitration of discrimination claims brought pursuant to the Age Discrimination in Employment Act (“ADEA”) was enforceable against individual union members.

Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008)

The provisions setting forth the general prohibition of age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 623(a)-(c), (e), are subject to a separate provision, § 623(f), creating exemptions for employer practices “otherwise prohibited under subsections (a), (b), (c), or (e).” This provision sets forth two exemptions, for practices based on “bona fide occupational qualifications” (BFOQ) or on “reasonable factors other than age” (RFOA), stating: “It shall not be unlawful for an employer . . . to take any action otherwise prohibited under subsections (a), (b), (c), or (e) . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age.” In Meacham v. Knolls Atomic Power Laboratory, the United States Supreme Court held that this RFOA exemption is an affirmative defense, and that an ADEA defendant seeking to avail itself of this exemption bears the burden of proof: it “must not only produce evidence raising the defense, but also persuade the factfinder of its merit.”

Espina v. Bd. of Review, 402 N.J. Super. 87 (App Div. 2008)

Pursuant to N.J.A.C. 12:17-9.11(b), an employee, absent good cause, is disqualified for unemployment benefits and considered to have voluntarily abandoned employment upon leaving her job for five or more consecutive work days. In Espina v. Bd. of Review, 402 N.J. Super. 87 (App Div. 2008), the New Jersey Appellate Division held that an employee who fails to return to work even after extended employer-authorized absence cannot be deemed to have abandoned her or his employment until the expiration of five consecutive days following the last day of the approved leave of absence.

Toto v. Princeton Township, 404 N.J. Super. 604 (App. Div. 2009)

In Toto, New Jersey’s Appellate Division clarified that, with respect to a claim for hostile work environment, the two-year statute of limitations begins to run from the last day that the plaintiff was at work, and not from the date of his official separation. Thus, even though the plaintiff was not terminated until seven months after his last day at work, and even though he filed suit less than two years after that, his hostile workplace environment claim was properly dismissed as untimely, because it was filed more than two years after his last day on the job.