Gibbons Law Alert

Gibbons Law Alert

Tagged: Discrimination

Third Circuit Decides First Cat’s Paw Case Post-Staub

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Posted in Discrimination

On September 13, 2011

On August 17, 2011, the Court of Appeals for the Third Circuit rendered its decision in McKenna v. City of Philadelphia, the first significant cat’s paw theory case out of the Third Circuit since the United States Supreme Court’s March 2011 decision in Staub v. Proctor Hospital, which was the subject of a previous Employment Law Alert post. The Staub decision addressed the circumstances under which an employer can be held liable for the discriminatory or retaliatory animus of a nondecisionmaker – often referred to as the “cat’s paw” theory. The primary issue in McKenna was whether an intervening act between the alleged retaliatory conduct and the employee’s termination – a hearing before a neutral board – was sufficiently independent to break any causal link between the allegedly retaliatory act and the employment action. Based upon the underlying facts of this particular case, the Court determined that it was not.

Placement on PIP Without Change to Job Status Not Adverse Employment Action

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Posted in Discrimination

On August 30, 2011

Joining several of its sister courts, the Third Circuit has held that, unless accompanied by a change in pay, benefits, or employment status, placement on a performance improvement plan (“PIP”) does not amount to an adverse employment action for purposes of the Age Discrimination in Employment Act (“ADEA”). Noting concerns over “naked claims of discrimination and greater frustration for employers seeking to improve employees’ performance,” the Reynolds v. Department of Army Court reinforces the notion that employers can utilize PIPs as a means to improve employee performance and conduct with decreased apprehension that the employee will initiate legal action based on the presence of the PIP alone.

U.S. Supreme Court Backs Wal-Mart and Halts One of the Most Expansive Class Actions in History

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Posted in Discrimination

On June 23, 2011

On June 20, 2011, the U.S. Supreme Court issued its much-anticipated decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __ (2011). The decision reversed the Ninth Circuit’s 2010 en banc decision and effectively halted what would have been the largest employment discrimination class action in history against the nation’s largest private employer. The Court’s 5-4 opinion is a decisive victory for businesses that reshapes the landscape for employment-related class action litigation and class action litigation in general.

New Law Prohibits Discrimination Against the Unemployed by NJ Employers

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Posted in Discrimination

On May 27, 2011

Beginning on June 1, 2011, New Jersey employers are prohibited from discriminating against the unemployed in print and Internet job advertisements. Specifically, pursuant to section one of the recently-enacted statute, employers may not knowingly or purposefully publish a job posting that states any of the following: current employment is a job qualification; currently unemployed candidates will not be considered; or only currently employed job applicants will be considered.

United States Supreme Court Decides “Cat’s Paw” Theory of Liability in Staub v. Proctor Hospital

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Posted in Discrimination

On March 3, 2011

It is now clear that an employer may be held liable for unlawful discrimination when it unwittingly terminates an employee based on a supervisor’s recommendation or false allegations motivated by discriminatory animus. The United States Supreme Court, in Staub v. Proctor Hospital, No. 09-400, 562 U.S. _(March 1, 2011), resolved a split in the lower courts over the reach of the so-called “cat’s paw” theory of liability, which gets its name from the 17th century fable by French poet Jean de La Fontaine. In the fable, a monkey convinces a cat to remove chestnuts from a fire. The cat complies, pulling out the chestnuts one at a time, burning its paw in the process, as the monkey feasts on the chestnuts. In the employment context, the “cat’s paw” refers to a situation in which a biased subordinate employee, who lacks decision-making authority, uses the final decisionmaker as a dupe to trigger a discriminatory employment action. In Staub, the Court held that if the decision to terminate is based in whole or in part on the malicious recommendation or false allegations from a supervisor who has discriminatory motives, the employer can be held liable under federal statutes that prohibit employment discrimination.

New Jersey Appellate Division Holds That Absence of Emotional Distress Damages Award Does Not Preclude Consideration of Punitive Damages

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Posted in Discrimination

On February 24, 2011

The New Jersey Appellate Division recently held in Rusak v. Ryan Automotive, LLC that a plaintiff was entitled to further proceedings on her punitive damages claim following a jury verdict in her favor on her hostile work environment and retaliation claims even though the jury did not award her emotional distress damages and rejected her separate intentional infliction of emotional distress claim. Although the case involved unique circumstances that are unlikely to be present in future matters, the decision serves as a reminder that the absence of an emotional distress award does not preclude further proceedings on punitive damages.

New Jersey Appellate Division Holds that Anti-Harassment Policy Alone Cannot Shield Employers from Liability

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Posted in Discrimination

On February 8, 2011

An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for sexual harassment. As the New Jersey Appellate Division recently made clear, however, the mere existence of such a policy is insufficient to insulate an employer from liability for its employee’s sexually harassing conduct. Though an unpublished decision, Allen v. Adecco, Inc., 2001 N.J. Super. Unpub. LEXIS 197 (App. Div. Jan. 27, 2011), provides a powerful reminder that to protect an employer from liability, an anti-harassment policy must be widely publicized, supported by training, and routinely enforced. Indeed, in Allen, although the employer promptly investigated plaintiff’s harassment claim and took prompt remedial action, the court ruled that the employer might still be held accountable if the harassment could have been prevented in the first place but for the employer’s alleged insufficient publication and training with regard to its anti-harassment policies.

Supreme Court Broadens Retaliation Lawsuits Under Title VII

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Posted in Discrimination

On January 27, 2011

The U.S. Supreme Court has just decided that an employer cannot “get back” at an employee who has complained about discrimination by going after other employees related to, or in a close relationship with, the complaining employee. By ruling in favor of a man who was fired after his fiancée complained about alleged sex discrimination at the same company, the Court’s decision in Thompson v. North American Stainless, LP has expanded Title VII anti-retaliation jurisprudence to encompass employees who themselves do not engage in “protected activity” as defined by the statute. Finding that the fiancée fell within the “zone of interests” of protection afforded by Title VII, he thus qualified as a “person aggrieved with standing to sue.” The decision is significant for employers because it establishes important precedent authorizing retaliation claims by employees other than the employee who made the original complaint of discrimination. Employers should make sure that their written anti-retaliation policies make clear to managers and supervisors that, after a claim of discrimination has been made, it is against company policy to retaliate not only against the employee making the claim but against any employee related to, or in a close relationship with, the complaining party.

New Jersey Supreme Court Expands Usage of Discovery Rule

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Posted in Discrimination

On December 28, 2010

Though the decision has received a great deal of attention because of the controversy, as played out in the separate opinions of Chief Justice Rabner and Associate Justices Rivera-Soto and Hoens, over whether the temporary appointment to the New Jersey Supreme Court of Judge Stern of the Appellate Division is constitutional, the recently decided case of Henry v. New Jersey Department of Human Services, is of special interest to employers, as it appears to expand the circumstances under which a plaintiff can invoke the equitable device known as the “discovery rule” to toll the 2-year statute of limitations applicable to claims under the Law Against Discrimination (LAD) In Henry, the Court, by a vote of 5-1 with one abstention, affirmed the Appellate Division’s holding dismissing plaintiff’s retaliation claim but reversed the Appellate Division’s dismissal of plaintiff’s discrimination claim. The Court remanded the discrimination claim for the trial court to conduct a hearing to ascertain whether plaintiff could not have reasonably discovered she had claim within 2 years of the accrual of her cause of action.

Individual Paychecks Re-start the Statute of Limitations in Discriminatory Compensation Claims Under the NJLAD

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Posted in Discrimination

On November 29, 2010

Peace of mind. That is what the two-year statute of limitations period applicable to claims filed under the New Jersey Law Against Discrimination (“LAD”) afforded employers. With respect to discriminatory compensation claims, however, the New Jersey Supreme Court’s decision in Alexander v. Seton Hall University has destroyed that peace of mind, holding that each individual paycheck effecting a discriminatory compensation decision constitutes an actionable unlawful employment practice. No longer is the two-year statute of limitations measured from the date of the compensation decision.

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