Mr. Scirocco recently participated in an ICLE seminar in Sussex County.  Below are the outline and highlights of the areas covered in this summary:

LAD

PURPOSE

“DISCRIMINATION IS A MATTER OF CONCERN TO THE GOVERNMENT OF THE STATE, AND THAT SUCH DISCRIMINATION THREATENS NOT ONLY THE RIGHTS AND PROPER PRIVILEGES OF THE INHABITANTS OF THE STATE BUT MENACES THE INSTITUTIONS AND FOUNDATION OF A FREE DEMOCRATIC STATE.” Lehman v. Toys “R” Us, 132 N.J. 587 (1993)

 “THE LAD SEEKS TO ENSURE THAT DISTINCTIONS BETWEEN PEOPLE ARE MADE ON THE BASIS OF MERIT, RATHER THAN SKIN COLOR, AGE, SEX OR GENDER, OR ANY OTHER MEASURE THAT OBSCURES A PERSON’S INDIVIDUAL HUMANITY AND WORTH.” Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super. 385 (App. Div. 2002)

 SOME OF THE PROTECTED CLASSES

UNDER THE LAD 

RACE

CREED

COLOR

NATIONAL ORIGIN

ANCESTRY

AGE

MARITAL STATUS

SEX

DISABILITY

 

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LAD

DISCRIMINATION

  1)         PRIMA FACIE CASE:

 
                A.            MEMBER OF PROTECTED CLASS

                B.            PERFORMING JOB OR QUALIFIED FOR JOB

                C.            ADVERSE ACTION TAKEN

                                Example:

                                       a. FAILURE TO PROMOTE

                                       b. FAILURE TO HIRE

                                       c. FIRE

                D.            POSITION STILL AVAILABLE OR SOMEONE ELSE FILLS IT

  2)         UNTRUE!!! THE EMPLOYER THEN COMES FORTH WITH A LEGITIMATE NON-DISCRIMINATING REASON WHY ACTION TAKEN

 FOR EXAMPLE:

  • COULD NOT GET ALONG WITH CO-WORKERS AND BOSS
  • POOR ATTITUDE
  • POOR ATTENDANCE RECORD
  • PERFORMANCE DEFICIENCIES
  • FALSIFIED COMPANY RECORDS
  • FAILURE TO ACHIEVE SATISFACTORY SCORE ON EMPLOYMENT TEST

   3)        PRETEXT!! THE PLAINTIFF THEN MUST REFUTE EMPLOYER’S EXPLANATION.

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 LAD

HOSTILE WORK ENVIRONMENT

 BASED ON LEHMAN V. TOYS “R” US

 132 N.J. 587 (1993)            

 

  • Does not have to be sexual in nature
    • But because female
    • Evolving concept
  • Conduct
    • Would not occur but for protected class status
    • Severe or pervasive
    • Make a “reasonable woman” believe
    • Conditions of employment altered, i.e. turns into a hostile or intimidating environment
  • Just women? No
    • Women by men
    • Men by women
    • Men by men
    • Women by women
    • Both heterosexual and homosexual
  • The super-sensitive need not apply
  • What if supervisor is equally crude and vulgar to all?
    • No basis for claim, i.e. no abuse because person is a member of a protected class
  • What if supervisor didn’t mean to harm employee (just kidding)
    • Does not have to be intentional
  • Not all sexual harassment is sex-based, e.g.:
    • Stealing female officer’s files Andrews v. Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)
    • Vandalized personal property Muench v. Township of Haddon, 255 N.J. Super. 288 (App. Div. 1992)
  • Male v. female
    • It is the rare employer who discriminates against a historically privileged group. It is the “unusual employer who discriminates against the majority.” Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990)
    • Severe and Pervasive
    • It is the conduct itself, not necessarily the effect that is important
    • Cumulative Effect
    • The work environment created may exceed the sum of individual episodes
    • Severe and pervasive enough to alter the conditions and create a hostile work environment. Taylor v. Metger, 152 N.J. 490 (1998)

 

 

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