Articles Tagged with harassment

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On March 28, 2018, the New Jersey Appellate Division granted an appeal and reversed a trial court employment law decision which had granted summary judgment in favor of the defendant employer the New Jersey Department of Human Services and against the plaintiff employee, dismissing all of his claims. In the case of Jerry Dean Rivera v. State of New Jersey Department of Human Services. The case was argued by Maurice W. McLaughlin, Esq. and Maurice W. McLaughlin, Esq. and Robert Chewning, Esq. wrote the briefs.

The case involved an employee who filed a complaint against his employer for discriminating against him based on his “disabilities,” national origin, and race; retaliating against him for his reports of unfair and discriminatory labor practices; and creating a hostile work environment in violation of New Jersey’s Law Against Discrimination (“LAD”), New Jersey’s Conscientious Employee Protection Act (“CEPA”), and the common law under Pierce v. Ortho Pharmaceutical Corp.

As with most discrimination cases, one of the major issues was determining whether the employee was performing the essential functions of his job. This issue required determining whether regular attendance was an essential function of the employee’s job, and, if so, what level was regained and whether the employer was required to accommodate the employee’s absences. The Appellate Division concluded that the employee should be given the opportunity to establish that he was able to perform all of his essential functions with a reasonable accommodation. Because no discovery was produced by the employer relating to whether it could have accommodated the employee’s absences either through a leave of absence or modified work schedule – combined with the fact that the employer’s overall size and other available positions – the employee was denied a fair day in court.

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typing.jpg In the last several years, many states have passed laws prohibiting cyber-harassment, cyber-stalking, and cyber-bullying to reflect the evolution of today’s society which, more and more, is becoming centered around electronic communications.

While New Jersey has been a strong advocate of anti-bullying and harassment laws, it has only recently passed a law which specifically criminalizes cyber-harassment. The law was considered to be, in large part, a reaction to the increase in the number of teens who have committed suicide after suffering online harassment. It passed both houses of the state legislature unanimously and was signed into law shortly thereafter by Governor Christie.

This law makes cyber-harassment a crime of the fourth degree, unless the harasser is 21 years old or older and the targeted person is a minor. In that case, it is considered a crime in the third degree. New Jersey’s Criminal Code provides that a third degree crime may result in 3 to 5 years of imprisonment if convicted and a fourth degree crime may result in up to 18 months of imprisonment. The law specifies that these crimes could also be penalized by either a $10,000 fine (for a fourth degree offense) or a $15,000 fine (for a third degree offense) either in addition to or instead of the jail time.
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New Jersey protects employees from discrimination and harassment in employment when the discrimination or harassment is based upon a protected type or classification of person. For instance the following classes are protected by New Jersey’s Law Against Discrimination: age, race, creed/religion, color, national origin (your family’s country of birth), nationality (your country of birth or where you are a citizen), and service in the United States armed forces.

The Law Against Discrimination also protects people from discrimination based upon their gender, pregnancy, sexual orientation, marital status, familial status (though typically only with respect to housing discrimination), civil union status, domestic partnership status, gender identity or expression. Further, it also protects classifications based upon mental or physical handicaps or disability, perceived disability, AIDS/HIV status, genetic information, atypical hereditary cellular or blood trait, refusal to submit to a genetic test or make available the results of a genetic test to an employer, and any other characteristic protected under applicable federal, state or local laws or regulations.

The Law Against Discrimination not only covers employment practices, but also prohibits unlawful discrimination in housing, credit and business contracts, and places of public accommodation.
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New Jersey’s Law Against Discrimination

New Jersey’s Law Against Discrimination (the “LAD”) protects many people, particularly employees, from discrimination because of their race, ethnicity or religion, among other things. Discrimination can take many forms, but includes direct tangible adverse employment actions, such as firing, demotion, etc., and harassment which cause a hostile work environment. In order to constitute discrimination, harassment must be either “severe or pervasive,” and severe or pervasive enough to create a “hostile work environment.”

The Law on Poorly Aimed Discrimination

The law prohibiting discrimination and harassment is well established. However, an issue arose as to whether discrimination or harassment based not on a person’s actual race, ethnicity or religion, but on his incorrectly perceived religion, race or ethnicity is also protected.

The LAD also protects against discrimination or harassment based on disability. As far back as 1982, New Jersey Supreme Court noted in a footnote, Anderson v. Exxon Co., 89 N.J. 483 (1982), that employers could not discriminate based on a perceived disability, even if the employee was not actually disabled. Although that was not the issue in the Supreme Court’s 1982 decision, the Appellate Division shortly thereafter decided another case, affirming the rule that employers could not discriminate based on a perceived, even if an incorrectly perceived, physical disability.

The LAD also prohibits discrimination in housing. In 1987, the Superior Court’s trial division found that a landlord had violated the LAD by refusing to rent an apartment to three gay men (sexual orientation is also protected by the LAD), based on the landlord’s perceived but on the mistaken perception that they would contract AIDS.
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