Discrimination

By:  Carmen Saginario Jr., Esq.
Contribution:  Nicole Crincoli, Law Clerk

Employers are well aware that state and federal laws prohibit discrimination and harassment in the workplace, and that many settlements of these claims provide for a non-disclosure agreement (“NDA”).   As of March 18, 2019, a new “twist” to New Jersey law prohibits employers from requiring employees to remain silent when they enter into an employment agreement or settle a harassment, discrimination, or retaliation claim.

What Does the Law Say?  The new law provides that “non-disclosure agreements” (i.e., prohibiting disclosure by employees of claims of harassment, discrimination, or retaliation) are not enforceable against the employee as “against public policy.” The new law also provides that provisions in an employment contract that waive any substantive or procedural right or remedy relating to any of these claims are also deemed against public policy and unenforceable against the employee.  Note that if the employee publicly reveals sufficient details so that the employer is reasonably identifiable, then the non-disclosure provision will also be unenforceable against the employer.

Who Does the Law Apply to?  The law applies to current or former employees who are parties to an employment contract or settlement.  While the law also applies to claims that have been submitted to arbitration, it does not apply to the terms of any collective bargaining agreement between an employer and the representative(s) of the employees.

Are Employers Prohibited from Entering Into NDAs?  The short answer is “No.”  Employers may still want to enter into non-disclosure agreements with employees.  However, these agreements cannot be created to silence employees who have been the victims of (or claimed) harassment, discrimination, or retaliation.  The new law also does not prohibit an employer from requiring an employee to sign an agreement requiring the employee not to compete with the employer during or after employment and not to  disclose proprietary employer information such as non-public trade secrets, business plans, and customer information.

Can an NDA That Has Already Been Agreed Upon Be Enforced?   Be careful on this one. While the law specifically says that its provisions only apply to “all contracts and agreements entered into, renewed, modified, or amended on or after the effective date” (March 18, 2019),  skillful employee advocates will likely argue that even “pre-existing agreements” are against public policy and should not be enforced. Also note that this law provides that a person who enforces or attempts to enforce a provision “deemed against public policy and unenforceable” under the law may be liable for the employee’s reasonable attorney fees and costs.

What’s the Take-a-Way?  As a threshold matter, employers should have policies and procedures in place aimed at the prevention of harassment and discrimination in the workplace.  As for this law, employers are cautioned to act cautiously and to seek advice from their labor and employment professionals before entering into a non-disclosure agreement with an employee, especially if there have been any claims of harassment, discrimination, or retaliation.

Answer: “Not necessarily,” said two Appellate Judges in Brancaccio v. City of Hackensack issued on December 5, 2017.

So What was the Claim?

Bryan Brancaccio, a full-time firefighter in Hackensack, was originally assigned to work “platoon work” where he responded to scenes of fires wearing fire equipment and performed the tasks necessary to extinguish fires. After it was determined that he had a disability, he was assigned to another job as a fire inspector, at the same rate of pay, where he would not have to actively fight fires. Brancaccio claimed that the Department discriminated against him based on his disability or perceived disability by reassigning him to a different job.

What are the Facts?

During one of Brancaccio’s shifts, a Deputy Fire Chief noticed him sitting on the front bumper of a fire truck, “gray” and “appearing to have discomfort in breathing.”  It was also determined that he needed “100% oxygen.”  The Chief didn’t immediately reassign Brancaccio, but agreed with him that if he became ill while working, he would report his condition to his supervisor so appropriate action could be taken (request an ambulance, etc.). Shortly after that, Brancaccio and other firefighters took a required pulmonary function test, which determined that Brancaccio could not wear a respirator required to be worn by all firefighters doing “platoon work” (i.e., regularly fighting fires).

Action Giving Rise to Claim of Discrimination:

In response to his “failing” the pulmonary test, the Chief determined that Brancaccio was disabled and reassigned him to the “fire prevention” bureau where he would not actively fight fires. His salary was unchanged, although he argued that he would lose significant overtime available to those who actively fight fires.

Did the Chief Discriminate Against Him?

“No,” said the courts. While Brancaccio was clearly disabled or perceived to be disabled, he also needed to show that his perceived disability led to an adverse employment action. He failed to do so, held the courts, saying that he didn’t suffer any adverse employment action because he “continued to earn the same salary as firefighters assigned to platoons, and he also received an additional $1500 stipend.”  Significantly, the Court noted that “a job reassignment, with no corresponding reduction in wages or status, is insufficient to qualify as an adverse employment action.”

What if Brancaccio Provided “Cold-Hard” Proof that He Would have Earned Overtime?

Perhaps that might have helped his cause with the Court, but it probably wouldn’t have made a difference, since the Fire Department showed that they were experiencing a significant backlog in fire inspections and had a critical need to have experienced fire inspectors (like Brancaccio) to keep the city safe. Thus, the Court held, Brancaccio did not show that the City’s continuing to use him as a fire inspector was a “pretext” for discrimination.

What’s the Take-A-Way Here?

As a threshold matter, employers must be careful in the treatment of those with disabilities or perceived disabilities and must ensure that if they take any action with respect to the employee’s job, that it is not “adverse.”  The problem: what amounts to “adverse action?” Know that each case is fact-specific and may result in a claim of discrimination if a careful and thoughtful analysis is not conducted.  If your entity is faced with a situation like the one faced by Hackensack, you should consult your labor and employment counsel to attempt to avoid a “fire in your house.”

Title VII is a federal law that prohibits discrimination in the workplace on the basis of certain protected characteristics, including gender. Recently, there has been intense discussion as to whether or not transgender individuals are covered by the gender discrimination prohibition of Title VII.  Although the United States Justice Department has expressed certain views on this issue within the last couple years, a clear answer as to the legal extent of Title VII’s gender discrimination protections, has not been established.  In a recent Western District of Oklahoma case, Tudor v. Southeastern Okla. State Univ., No. CIV-15-324-C (W.D. Okla. Nov. 20, 2017), a jury was charged with deciding whether or not Title VII protected a transgender university professor from discrimination. The jury found that Title VII does protect transgender individuals based upon their gender and that the professor was entitled to damages.

Facts of Case:

Rachel Tudor (“Dr. Tudor”) was first hired as a tenure-track professor at Southeastern Oklahoma State University (the “University”) in 2004.  At that time, Dr. Tudor presented as a male. In 2007, Dr. Tudor began transitioning into a female.  Dr. Tudor alleged that once she notified the University that she would be presenting as a woman for the 2007-2008 school year, Dr. Tudor received a call from human resources stating that the University’s vice president of academic affairs had inquired about firing her because her transgender identity offended his religious beliefs.  In October 2009, Dr. Tudor applied for tenure and a promotion to an associate professor position.  Her application was denied.  Dr. Tudor alleges that she requested an explanation as to why her application was rejected and the University refused to provide her with a reason.  Dr. Tudor then filed a discrimination lawsuit in federal court alleging, in part, that Dr. Tudor was denied tenure because of her gender.

Dr. Tudor’s Complaint alleged that Title VII’s prohibition on sex discrimination includes discrimination because of gender identity or because an employee has completed a gender transition or is undertaking a gender transition.  Dr. Tudor also claimed that Title VII prohibits an employer from discriminating against an employee because her behavior or appearance does not conform to traditional gender stereotypes.

Analysis and Legal History:

In December 2014, former Attorney General, Eric Holder, announced that the United States Justice Department would adopt a stance that Title VII covers gender identity in future litigation.  Under that stance, in 2015, the Justice Department sued the University in this case claiming discrimination under Title VII. Dr. Tudor then joined the case in her own capacity. The case was still pending as of 2017. In October 2017, the current United States Attorney General, Jeff Sessions, issued a memo, stating that “Title VII does not protect individuals against discrimination on the basis of gender per se, including discrimination against transgender individuals.”  The memo also stated that the Justice Department’s position going forward would be that “sex” as used in Title VII, means “biologically male or female.”  Due to Attorney General Jeff Sessions’ stance on this issue, the Justice Department settled with the University and withdrew from the case.  Despite the Justice Department’s settlement, Dr. Tudor proceeded with the case.

After a trial took place, on the second day of deliberations, the jury found that the University had discriminated against Dr. Tudor when it denied her tenure because of her gender.  The jury awarded $1.16 million to Dr. Tudor.

What does this mean?

Despite the fact that the Justice Department has taken the position that transgender employees are not protected under Title VII, the issue as to whether or not transgender individuals are covered under Title VII’s statutory language has not been completely resolved. Employers should make sure that their discrimination and harassment policies are strictly enforced in the workplace and that those polices extend to employees on the basis of their gender identity. Employers can put themselves in the best position to defend a lawsuit by updating their discrimination policies and discrimination training sessions to include examples that address transgender employees.

Hiring new employees tends to be tricky for employers because there are so many employment laws that must be abided by in regards to the hiring process.   Often applicants who have interviewed for the open position, but are not hired, feel disappointed and rejected. It is always possible that the applicant may claim that he/she was not hired based upon a discriminatory reason.  In a recent Third Circuit case, Bulifant v. Del. River & Bay Auth., No. 16-3899, 2017 WL 2894388 (3d Cir. July 7, 2017), the Third Circuit provided some guidance to employers as to how to defend against discrimination claims based upon the hiring process.

Facts of the Case

Shawn Bulifant, Gary Hughes, Daniel Loper, James McClintock and Christopher Vernon (hereafter referred to as the “Employees”) were seasonal crew members who worked for Delaware River & Bay Authority’s ferry services at various points between 2006 and 2017.  The Employees applied for various full time positions with DRBA in response to job postings. Each time, the Employees received interviews but they were not selected for any of the full-time positions.

In making hiring decisions the DRBA employed a standardized approach in which the same panel of four DRBA employees interviewed every candidate using the same pre-set questions that focused on four competencies – functional and technical skills, safety, customer service and peer relationships. Based upon the candidate’s responses, each panel member assigned the candidate a numeric score. The scores of the panelists were then added together and then the rankings and comments were sent to human resources.

Here, the Employees filed suit, claiming that they were not hired for the full time positions with the DRBA due to their age in violation of the Age Discrimination in Employment Act.  Moreover, the Employees claimed that because they submitted complaints to the DRBA regarding alleged age discrimination after their first round of unsuccessful applications, the Employees were not hired for the later positions in retaliation for their complaints.  The District court granted summary judgment in favor of DRBA and this appeal followed.

Analysis

To establish a claim of age discrimination, the complainants must show that their age was the “but for” cause of the DRBA’s decision not to hire them.  Although the Court found that the Employees were able to satisfy a prima facie case of age discrimination, they could not dispute DRBA’s legitimate non-discriminatory reason for failure to hire – low interview rankings.  To the extent that DRBA followed its own ranking system, the Court found that the process was “formal, open, objective, and documented.” The Employees could not demonstrate that strict adherence to this system was a pretext for discrimination.  Despite this, the Court did find that in cases where DRBA did not hire according to the numerical rankings and did not document reasons regarding the deviation from its policy, there was enough evidence that a reasonable jury may find pretext.  Thus, the Court decided that only situations where the ranking system was not followed would be presented to a jury. In regards to retaliation, the Court found that the Employees were unable to establish that a causal connection existed between their protected activity and DRBA’s decision not to hire them.

What does this mean?

In order to avoid possible lawsuits later, it is in an employer’s best interest to create a “formal, objective and documented” interview process.  The easiest way to do this, although not the only way, is to have each interviewer rank the candidate based upon set (and written) criteria. It is best that an employer hire according to the grading system (highest grade = getting the job) and if the employer decides to deviate from the system, notes should be kept as to why.  The grading sheets and any comment sheets should be retained by the employer to use later as a tool in defending against claims of discrimination.

On January 26, 2017, after analyzing four days of trial testimony, a jury in the Federal District Court of New Jersey issued a verdict that Lockheed Martin (“Lockheed”) must pay $51.5 million to a Plaintiff in an age discrimination lawsuit.

The lawsuit, alleging violations of the Age Discrimination in Employment Act (“ADEA”) and the New Jersey Law against Discrimination (“LAD”), was brought by Plaintiff Robert Braden, who held the title of project specialist at Lockheed’s Moorestown, New Jersey location. Braden became a Lockheed employee in 1995 and was included in a 2012 reduction in force, when he was 66 years old. Out of 110 employees at the Moorestown location with the same title as Braden, five people were laid off and they were all over the age of 50.  Braden alleged that the company used no objective measurements to choose who would be laid off and that at the same time that the layoff took place, Lockheed continued to recruit and hire younger employees.  Braden also claimed that he was paid less than younger employees with similar positions and that he overheard company officials suggesting that it was preferable to give older workers lower evaluations and lower pay because they “have nowhere else to go.” Lockheed defended its actions by asserting that the layoff decisions were made for legitimate, non-discriminatory reasons.  Lockheed argued that Braden’s performance was consistently below average and that there was a lack of impending work for Braden’s skill set.

Ultimately, the jury found in Braden’s favor and awarded $520,000 in back pay under the ADEA, which was then doubled because the jury found that Lockheed’s violation of the ADEA was willful, and another $520,000 as emotional distress damages.  Braden was also awarded $50 million in punitive damages under the LAD.

This jury verdict sends a clear message to employers that age discrimination will not be tolerated and that a company should pay attention to the age of its employees when considering a reduction in force (or other adverse employment action). It is best for an employer to consult with legal counsel before conducting a reduction in force or before making any significant personnel decisions to ensure that the decision is made in compliance with the law.

Now that Thanksgiving is over, flu season is in full swing.  Although it would not occur to most employers that requiring employees to receive a flu shot would cause legal problems, recent cases from Pennsylvania show that such a requirement may be problematic.

In September 2016, the U.S. Equal Employment opportunity Commission (“EEOC”) filed suit on behalf of a group of nurses and medical workers who allege that they were terminated by their employer, a hospital, because they refused to receive the flu vaccine for religious reasons. See U.S. Equal Employment Opportunity Commission v. Saint Vincent Health Center, No. 16-224 (W.D. Pa. September 22, 2016).  In that case, the Defendant employer had maintained a mandatory vaccination policy since 2013, which required all employees to receive a flu vaccine annually as a term and condition of employment.  Under this policy, an employee may request an exemption to the flu vaccine requirement for either medical or religious reasons. In order for an employee to qualify for a religious exemption, the employee must submit a form request.  The form requires the employee to obtain a certification by a clergy member or other third party that states that the employee requesting the exemption “practices a religion where influenza vaccination is contraindicated according to doctrine or accepted religious practices.” The policy also provides that any employee who has not been vaccinated for the flu and has not received an employer-approved exemption will be terminated.  The EEOC alleges that the employer failed to accommodate the religious beliefs of six employees, who are all participants of different religious sects.  Each of the employees requested a religious exemption and allegedly provided the employer with passages from religious texts to support their positions.  The hospital denied each of the requests for exemptions because the employees did not provide “proof of a religious doctrine.” This case is currently pending in the District Court of the Western District of Pennsylvania.

A similar case was heard in the Eastern District of Pennsylvania in August 2016 called Fallon v. Mercy Catholic Med. Ctr., No. 16-00834, 2016 U.S. Dist. LEXIS 105364 (E.D. Pa. Aug. 9, 2016). In that Case, Paul Fallon was employed by a medical center, which required that its employees receive the flu shot or request an exemption.  Fallon refused and submitted a letter and twenty-two page essay explaining why he should be exempt from the requirement.  Fallon is not a member of an organized religion, but he explained to his employer that he opposes vaccines and believes that their benefits are exaggerated and risks minimized.  Mr. Fallon’s request for an exemption was denied and he was terminated.  Fallon brought suit alleging religious discrimination under Title VII and wrongful termination in violation of Pennsylvania public policy.  The employer filed a motion to dismiss the Complaint, which was granted.  The Court held that Fallon failed to state a claim for religious discrimination under Title VII because Fallon’s opposition to vaccinations was entirely personal, political, sociological and economic, as opposed to being based upon religious orientation.  The Court also held that Fallon failed to establish that his termination threatened a clear mandate of public policy.

Although it is not clear what the outcome will be in the pending EEOC case, it is clear that there are stark differences in the facts between the EEOC case and Fallon’s case.  Employers, especially those in the medical field which require employees to receive flu vaccinations, should keep these cases in mind.  When faced with an employee who refuses to abide by an employer policy for “religious reasons,” whether it be related to vaccines or any other issue, it is best to speak with legal counsel about the specific facts at hand before denying or approving an exemption from the policy.