Newsletter March 2015

Newsletter March 2015

Employees Beware: Put Sexual Harassment Complaints in Writing, or Do Whatever Else Your Employer's Complaint Policy Requires

Ty Hyderally, Esq.March 2015 Newsletter

Employees suffering from a hostile work environment due to sexual harassment should beware that they may have no remedy under New Jersey's Law Against Discrimination if they fail to correctly follow their employer's complaint procedures, according to the New Jersey Supreme Court's recent decision in Aguas v. State, 2015 N.J. LEXIS 131. The Aguas Court held that where the employer has taken no tangible adverse action against the complaining employee (for example, termination), the employer is not liable for hostile work environment sexual harassment claims if the complaining employee failed to take the steps required by the employer's complaint procedures, such as putting a complaint in writing.

Ilda Aguas ("Aguas") was a corrections officer in the New Jersey Department of Corrections ("DOC"). The DOC's policy required that employees with complaints of sexual harassment/hostile work environment put such complaints in writing. Aguas complained of sexual harassment by two of her supervisors, but did not make a written complaint, fearing retaliation. Therefore, the Aguas Court held that the employer "may assert as an affirmative defense that it 'exercised reasonable care to prevent and correct promptly any sexually harassing behavior,' and 'the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,'" adopting the test expressed by United States Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). Id. at 11-12, citing Ellerth, supra, 524 U.S. at 765; Faragher, supra, 524 U.S. at 807-08.

The New Jersey Supreme Court further observed that its decision in Aguas was a natural extension of its landmark ruling in Lehman v. v. Toys 'R' Us, 132 N.J. 587 (1993), and its progeny, which generally addressed, but never expressly held, that an employer may be vicariously liable for sexual harassment committed by a supervisor that results in a hostile work environment. Aguas, supra, 2015 N.J. LEXIS at 1. The Aguas Court also reasoned that providing employers with such an affirmative defense "furthers the LAD's purpose of eliminating sexual harassment in the workplace by motivating employers to maintain effective anti-harassment policies, and by encouraging employees to take prompt action against harassing supervisors in accordance with those policies." Id. at 12, citing Lehman, supra, 132 N.J. at 626.

The Aguas holding was not all bad news for employees, however. While the Aguas Court expanded employer defenses to sexual harassment hostile work environment claims, it added that is only the case where the plaintiff "unreasonably" failed to follow the company's grievance procedures. Thus, this may provide a safe haven for some plaintiffs if they successfully argue that their failure to take advantage of the company's procedures was "reasonable."

In addition, the Aguas Court declined to adopt the restrictive definition of who can be a "supervisor" for purposes of establishing employer vicarious liability. The Aguas Court rejected the narrow definition of "supervisor," adopted by the United States Supreme Court in Vance v. Ball State University, 133 S. Ct. 2434, 2443 (2013), of only those empowered by the employer, "to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Aguas, supra, 2015 LEXIS at 56-57, (citations omitted). Instead, consistent with prior New Jersey case law, the Aguas Court adopted the more expansive definition endorsed by the Equal Employment Opportunity Commission, holding that supervisors are, "not only employees granted the authority to make tangible employment decisions, but also those placed in charge of the complainant's daily work activities. Thus, an allegedly harassing employee is the complainant's supervisor if that employee had the authority to take or recommend tangible employment actions affecting the complaining employee, or to direct the complainant's day-to-day activities in the workplace." Aguas, supra at 8, 42-48.

The Aguas decision is likely to foreclose some employees from pursuing claims for sexual harassment hostile work environment because they unreasonably failed to follow company grievance policies. However, employees can take some comfort in: (1) the Court permitting an exception where the Plaintiff's failure to follow company complaint procedures was reasonable, and (2) the Court's refusal to adopt the Vance Court's restrictive definition of the types of employees who are deemed to be supervisors for purposes of establishing employer vicarious liability.

By Francine Foner, Esq. and Malcolm Thorpe

New EEOC Memo Protects Workers from Discrimination Based on Sexual Orientation

Ty Hyderally, Esq.

In 2012 the EEOC's Strategic Enforcement Plan broadened Title VII to include discrimination based on an individual's identification as gay, lesbian, bisexual, or transgender. In a memorandum dated February 3, 2015, the Equal Employment Opportunity Commission (EEOC) clarified the EEOC's position on Title VII protections available to LGTB employees subject to discrimination in the workplace.

The memorandum instructed EEOC field offices on how to handle such discrimination complaints and addressed two integral issues. First, it emphasized that "complaints of discrimination on the basis of transgender status or gender-identity-related discrimination should be accepted under Title VII and investigated as claims of sex discrimination." Second, the memorandum clarified that "individuals who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a claim with the EEOC."

The EEOC relied upon two decisions to support its position; In Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the EEOC confirmed that employment discrimination based on transgender is considered sex discrimination and a violation of Title VII. The Court in Muhammad v. Caterpillar Inc., 767 F.3d 694 (7th Cir. Ill. 2014) reiterated that employee complaints of sexual orientation discrimination are considered "protected activity" for purposes of a retaliation claim.

Thus, the EEOC has made clear that individuals who experience gender-identity discrimination and are retaliated against for associated complaints can file a claim with the EEOC on that basis.

By Francine Foner, Esq. and Malcolm Thorpe

Supreme Court Denies Worker Pay for Antitheft Screenings in Amazon Warehouse

Ty Hyderally, Esq.

In a recent case before the U.S. Supreme Court, Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), Amazon warehouse workers were denied pay for time spent undergoing antitheft screenings at the end of each work day. The Supreme Court unanimously ruled that waiting in line at a security check was not an "integral and indispensable" part of the job. Id. at 518. Justice Clarence Thomas, writing for the Court, emphasized that workers were paid to retrieve items from shelves and package orders for shipment, rather than undergo screenings. Id. at 514. The Court applied the "integral and indispensable" test to determine whether or not an employee's activity is compensable. Id. at 517. The test's focus is on whether the activity "is tied to the productive work that the employee is employed to perform." Id. at 514. The opinion clarified that an activity is "integral and indispensable" if it is an "intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities." Id. at 517.

In a concurring opinion, Justice Sotomayor breaks down the decision into two major points. First, Her Honor explains that "an activity is 'indispensable' to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively." Id. at 520. Second, the security screenings were not the primary activities the employees were employed to perform. Id. Thus, the searches are simply a "part of the process by which the employees egressed their place of work, akin to checking in and out and waiting in line to do so." Id. at 520.

In reaching its decision, the Busk Court relied on the 1947 Portal-to-Portal Act, 29 U.S.C. § 251 to 262 (the "Act") and Supreme Court precedent interpreting the Act. Among other things, the Act shields employers from paying workers for tasks performed before or after the worker's "principal activities." 29 U.S.C. § 254. The Supreme Court has interpreted the Act to require employers to pay employees for activities occurring before or after the work day when they are an "integral and indispensable part of the principal activities for which covered workmen are employed." Steiner v. Mitchell, 350 U.S. 247, 256 (1956). However, the Busk Court noted that security screenings fall short of meeting this standard as they are not an "integral and indispensable" part of the workers' principal activities. Busk, 135 S.Ct. at 520.

However, the Supreme Court's ruling in Busk does not necessarily foreclose all claims for unpaid security screenings. The Court only addressed claims under the Fair Labor Standards Act (FLSA). Id. at 515. Thus, security screenings before or after the workday may still be compensable under state law. In addition, unions may bargain for workers to receive pay for such screenings.

By Francine Foner, Esq. and Malcolm Thorpe

These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.

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