Re: working relationships

Daniel J. Munoz//June 21, 2021

Re: working relationships

Lawmakers are weighing an overhaul to the state’s workplace harassment and discrimination laws

Daniel J. Munoz//June 21, 2021

A  bill sponsored by one of the state’s most influential lawmakers would overhaul New Jersey’s workplace discrimination and sexual harassment laws. Labor rights organizations and women’s rights groups say the proposal, Senate Bill 3352, includes much-needed reform to clamp down on these practices as they run rampant in the workplace. It was approved by the Senate Labor Committee on June 10.

Loretta Weinberg, Senate Majority Leader, D-37th District.

“These are some of the most vulnerable workers in society who have been powerless to defend themselves,” said the bill’s sponsor, Senate Majority Leader Loretta Weinberg, D-37th District. “They need to know they have the law on their side and that they won’t be left defenseless against abuse or harassment.”

But businesses and conservative lawmakers contend that the bill would open the doors to litigation over trivial, day-to-day interactions. “[T]his bill goes too far by substantially rewriting New Jersey’s Law Against Discrimination and overriding more than 25 years of carefully crafted court decisions that have provided some of the strongest protections for employees while at the same time balancing the interests of employers and of the public at large,” reads a June 9 letter from the New Jersey Business & Industry Association and 24 other business organizations and trade groups. “S3352 would change the nature of the workplace, and not for the better. It would essentially turn any employee or customer interaction into potential litigation.”

Debra Lancaster, executive director of the Center for Women and Work at the Rutgers University School of Management and Labor Relations, said businesses should be less worried about legal action and more concerned about “the costs that sexual harassment generates for individuals and organizations: reduced job satisfaction, increased absenteeism, job turnover, and deterioration of relationships in the workplace. … Businesses should be worried about lawsuits if they do not have a plan to prevent sexual harassment and if they do not support a culture where their employees feel safe and supported from discrimination and harassment.”

The measure would scrap a long-standing legal standard that harassment must be “severe and pervasive” to be actionable. In its place, according to the latest version of the bill, unlawful harassment would be defined as subjecting someone “to inferior terms, conditions or privileges of employment.” Under existing law, employers can refuse to hire or promote people above the age of 70. That practice would be outlawed under the legislation.

Nancy Erika Smith, a prominent attorney who has represented plaintiffs in several high-profile sexual harassment and assault cases, said the “severe and pervasive standard” sent a message for decades that “a little bit of harassment and discrimination was okay.”

Nancy Erika Smith

“Being called the N-word has been found not severe and pervasive … a woman being patted on the [behind] by her boss has been found to be not severe or pervasive,” said Smith, co-founder of the Montclair law firm Smith Mullin. “Somebody makes an off-hand comment or tells a joke is not going to be actionable sexual harassment. If your boss feels like he can touch your butt, yeah it should be.”

Ray Cantor, vice president of government affairs at the NJBIA, said the “severe and pervasive” standard was vital to keep lawsuits from arising out of “personality conflicts, lack of sensitivity, and mere offensiveness.

“To eliminate the severe or pervasive standard and leave, as a defense only, as this bill would do, that the conduct be more than ‘petty slights or trivial inconveniences’ sets the bar far too low and invites complaints and lawsuits for… minor personal interactions,” Cantor said in written testimony about the bill. “It would weaponize everyday interactions leaving employees on edge, not knowing if anything they said or did could be the basis for a lawsuit.”

Ray Cantor, vice president of government affairs, New Jersey Business & Industry Association

Another provision of the bill would require businesses with at least 50 workers to provide in-person training, though such sessions would be required of supervisors of any size employer. Smith said that an overhaul of workplace harassment and discrimination training is vital, and that many existing, typically online, training programs fail to achieve the desired goal.

“It’s an online thing you have to click through, the scenarios they paint are stupid,” she said.

More interactive and in-person training programs, developed by state agencies such as the Division of Civil Rights, would “help people become less discriminatory and more productive,” Smith added.

Complaints could be filed with either the DCR or Superior Court, another point of concern for business groups. And the bill adds another year to the statute of limitations on complaints, extending it from two to three years. And an employee would not have to first file a complaint with their employer.

“Under this bill, cases could extend for years and an employer would have to answer to the same allegations in two different venues, even if the [DCR] initially found there was no probable cause,” the business groups argued in the NJBIA letter.

The bill also extends discrimination protections to three new categories of workers: interns, independent contractors and domestic workers.

In 2019, ride-hailing company Uber, which relies heavily on freelancers, reported 5,981 cases of sexual assault from 2017 to 2018. The incidents included what it considers the five most severe instances: non-consensual kissing of a non-sexual part of the body, attempted non-consensual penetration, non-consensual touching of a sexual part of the body, non-consensual kissing of a sexual part of the body, and non-consensual sexual penetration.

But the report does not include forms of sexual misconduct, such as indecent photography or video without consent, masturbation, indecent exposure, and verbal threat of sexual assault.

Drivers were accused of sexual misconduct in 54% of cases and the rider in 45% of cases. Drivers made up 42% of those filing the complaint, and riders made up 56% of cases.

“Of course, this is more than an ‘Uber thing’,” said Tony West, the ride-hailing company’s chief legal officer, in a blog accompanying the report. “Safety should never be proprietary, and it’s our intention to make an impact well beyond our own company, encouraging others to be more transparent with their data and to share best practices that can make everyone safer.”

Uber did not comment for this story, nor did Lyft, its main ride-hailing competitor.

Goldman, Davis & Gutfleish PC Partner Kathryn McClure

“We’re acknowledging that domestic workers and independent contractors make up a significant portion of our modern workplace. They should be afforded the protections that our employees deserve,” said Kathryn “Katy” McClure, who represented Katie Brennan during the Al Alvarez hiring scandal that rocked the Murphy administration and New Jersey politics in 2018 and 2019. Brennan, who was involved with then-candidate Phil Murphy’s gubernatorial election campaign, alleged that she was sexually assaulted by campaign staffer Alvarez in 2017, and that he was hired by the administration despite her complaints to many state and campaign officials.

“Think about all the nannies and the Uber drivers … these workers need the same protections that our workers have,” McClure continued.

Another section of the bill would provide that any instance or accusation of sexual harassment against a defendant would be discoverable and relevant when a new plaintiff sues that person or company. And that would be regardless of whether the complaining witness had any knowledge of those prior complaints.

“Under current court rules, employers would be required to disclose internal complaints of discrimination if they are of the same type or similar to the plaintiff’s complaint,” business groups wrote in the NJBIA letter. “[T]his bill goes further and allows discovery of all complaints filed, even if they had nothing to do with the alleged complaint,” the letter continued. “This allows a fishing expedition by the plaintiff’s attorney and places an undue burden on the employer.”

Alan Schorr, legislative liaison with the National Employment Lawyers Association of New Jersey, praised that proposal in the bill. “If other people have made claims in the workplace, if there’s other lawsuits that are public, if there are claims with the DCR or [Equal Employment Opportunity Commission] against the same bad actors doing the same things, they are relevant,” Schorr, an attorney at the law firm Schorr & Associates, told lawmakers on June 10.