New York Injury Attorney Blog

Superior Court of New Jersey Appellate Division: J.T.’s Tire Service v. United Rentals

There are basically two forms of sexual harassment: The first is quid pro quo sexual harassment, which “occurs when an employer attempts to make an employee’s submission of sexual demands a condition of his or her employment.” The second is hostile work environment sexual harassment, which occurs "when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.”

Simply put, the latter form of harassment generally occurs when a woman works among Neanderthal men who have not learned that it is no longer acceptable in the work place to comment about anatomy, grab or grope said anatomical parts or generally act like we still live in the stone age. It’s akin to a mob mentality on a smaller scale and it brings out the worst in men. Just ask Isiah Thomas of the Knicks and Madison Square Garden Chairman James Dolan.

Quid pro quo sexual harassment is of a different nature. It requires no mob, no assists, just a willingness to abuse power or position for sex. It’s not just the lowest form of harassment, it’s the low-life form of harassment. But can it happen when it isn’t the boss hitting on an employee? What about in the market place, when the representative of one business demands sexual favors from the representative of another to close the deal or to maintain their commercial intercourse?

United is a national equipment rental company. Its Piscataway branch manager was Harold Hinkes. Eileen Totorello is the sole shareholder of J.T. Tire Service, a company that was selling tires to United since 1998. In 2005 Hinkes “began pressuring Totorello to have a sexual relationship with him.” She refused. United Piscataway then stopped buying her tires.

Totorello “managed to get the work back” (one wonders what was said), but Hinkes continued to make threats to withhold business if theirs remained a sex-free relationship. Apparently intent on winning, or at least commandeering sexual favors from Ms. Totorello, he used his tired old tire line to make his point, and added a little kissing and groping in case he had been too subtle. When she refused even these creative advances, Hinkes told her she made a “very poor business decision.” Tire purchases then went permanently flat when United stopped buying J.T.’s tires, which by then amounted to sales of $29,000 per month.

J.T. and Ms. Totorello sued. The lower court said there was no case (all’s fair in love and war, and apparently in business), and that this was not the type of harassment contemplated by the Jersey discrimination statute. The Appellate Division disagreed, finding that “The LAD prohibits discriminatory refusals to do business on the basis of sex, by making it unlawful: For any person to refuse to buy from…contract with…or otherwise do business with any other person on the bases of …sex.”

While defendant conceded that the statute prohibited sexual harassment, it argued that it did not prohibit sexual discrimination, and that the former was prohibited only in employment, and either way, this was not the kind of discrimination the LAD contemplated. While United get’s an “A” for chutzpah, it got nowhere with the court, which ruled:

Although the LAD does not specifically mention sexual harassment as a prohibited form of discrimination, it is well-established that ‘[s]exual harassment is a form of sex discrimination that violates both Title VII and the LAD.’

It went on to say the obvious, which unfortunately for alleged low-lifes and Neanderthals, often needs to be said, to wit, “Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim’s sex.” And since touching and groping made the question easier for the court to resolve, the refusal to buy tires under the above quoted LAD meant that United’s actions through Hinkes was also discriminatory due to her sex. To rule otherwise, to let such behavior continue unfettered, “would stand as a barrier to women’s ability to do business on an equal footing with men.”

It was Lord Acton who said “power corrupts and absolute power corrupts absolutely.” But it’s all relative. Even a little power, like a little knowledge, is a dangerous thing in the wrong hands.

United ended up with a blow out in court for letting Hinkes drive a hard bargain. Maybe now it will remember one of the fundamental reasons to conduct business at arm’s length—it keeps negotiators out of groping and grabbing range.

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Posted In: Brave New World , Discrimination , Employment Discrimination , Other State Courts

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U.S. Court of Appeals for the Second Circuit: Halpert v. Manhattan Apartments, Inc.

In New York, unless you’re in a union, are a government worker or have a contract of employment, you are an at-will employee. You can be fired for any reason whatsoever, except, of course, for the wrong reasons (the discriminatory ones proscribed by state and federal legislation and constitutions). Those protections extend to the hiring process as well.

Michael Halpert applied for a position with Manhattan Apartments Inc. (MAI) showing rental apartments . He was interviewed by Robert Brooks. Halpert claims Brooks told him he was “too old” for the job and sent him on his way. Brooks was not an employee of MAI. He was an independent contractor (a cost saving measure used by many employers to avoid giving benefits, and sometimes, to avoid coming under the mandates of federal or state laws by keeping the number of “employees” under the amount that triggers the laws applicability). Halpert didn’t care what Brooks was. He knew his rights so he sued MAI for age discrimination.

The lower court ruled in MAI’s favor, finding that the Age Discrimination in Employment Act (ADEA) “does not apply to independent contractors.” As a result, it dismissed Halpert’s case finding that MAI was not an employer under the definition of the ADEA.

Not so fast.

Employers may be able to reduce taxes, keep costs down and avoid providing health coverage by requiring workers to be independent contractors, but they don’t get a free pass for discrimination when that independent contractor is acting on the employer’s behalf. As the court concluded, if Halpert was interviewed by Brooks for a position with MAI, or MAI let Halpert believe he was being interviewed for a position with them (and not with Brooks) “an employer (MAI) can potentially be held liable for discrimination by an independent contractor (Brooks) who acts for the employer.”

Since the ADEA provides that “an employer may not ‘fail or refuse to hire...any individual...because of such individual’s age,’” MAI could be found liable if Brooks did in fact tell Halpert he was too old for the job. The court put it this way: That prohibition applies regardless of whether an employer uses its employees to interview applicants for open positions, or whether it uses intermediaries, such as independent contractors, to fill that role.” If Brooks had authority to hire, MAI couldn’t hide behind his independent contractor status to avoid liability for discriminating against Halpert. And that question can only be resolved when the nature of Brooks’ authority and relationship with MAI is fully explored.

Accordingly, questions of fact exist which could not be resolved by summary judgment and the dismissal by the District Court was vacated.

It’s good to know that a mere declaration of independence doesn’t insulate an employer from the actions of those it hires as independent contractors. If that were the case, everyone would be required to be an independent contractor, leaving employers free to act with impunity while letting their non-employees do whatever dirty work was needed. That is one giant loophole the court was not prepared to create and one most of us would consider sound public policy. In employment as in life, you don’t necessarily dodge the bullet by claiming “it wasn’t me!” Sometimes you’re responsible, even if you don't personally pull the trigger. That’s the way it’s always been, legal constructs like "independent contractor" notwithstanding.

As a footnote, it’s worth noting that Mr. Halpert prevailed in this matter pro se—without the assistance of counsel—or put another way, as an independent contractor. There’s a certain irony in that. One hopes it’s not lost on MAI or Mr. Brooks.

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (1)

Posted In: Employment Discrimination , It's My Right! , U.S. Court of Appeals

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U.S. Court of Appeals for the Third Circuit: Webb v. City of Philadelphia

How would you feel about getting pulled over by a cop wearing a hijaab—the traditional headcovering worn by Muslim women? That’s the question presented by Officer Kimberlie Webb of the Philly PD. A cop since 1995 and a practicing Muslim, she decided she wanted to wear such a headscarf “while in uniform and on duty.”

The Philly PD said “no” based on Department Directive 78 which severely restricts permissible police attire. For the police brass, a hijaab would be an unacceptable official wardrobe malfunction.

Undaunted, Webb filed a Civil Rights complaint with the EEOC and the Pennsylvania Human Relations Commission. Six months later, while that matter was still pending, she made a fashion protest and wore her hijaab to work. She was ordered to remove it, refused, and was sent home. The same thing happened the next day, and the day after. Disciplinary charges were brought against her and she was suspended for 13 days.

She then sued the City, the cops and the Police Commissioner for religious discrimination, retaliation and sex discrimination.

The District Court dismissed all of Officer Webb’s claims, finding that the standards set out in Directive 78 “promote the need for uniformity, but also enhance cohesiveness, cooperation, and the esprit de corps of the police force.”

The Circuit Court of Appeals explained the law on religious discrimination thusly: the employee must show: “(1) she holds a sincere belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with a the conflicting requirement.” Both the District Court and the Circuit Court held that Officer Webb satisfied these requirements. But the inquiry doesn’t end there. Once satisfied, the burden shifts to the employer to show “either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business.”

As the Philly Police Commissioner put it, enforcement of Directive 78 “is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Accordingly, cops cannot wear any religious garments with no exception for hijaabs. As the Court noted, the Commissioner’s reason for refusing wardrobe accommodations were “sufficient to meet the “undue hardship upon the employer” threshold that the Philadelphia Police Department was required to show.

Webb’s appeal to the Circuit Court was also dismissed.

As Jack Webb (no relation), Sergeant Joe Friday of Dragnet fame used to say, “Nothing but the facts, ma'am.”

To paraphrase, "Nothing but the hats, ma'am."

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Employment Discrimination , It's My Right! , Religion , U.S. Court of Appeals

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Appellate Term, First Department: Taylor v. New York University Medical Center (NYUMC) et. al.

In 1994, Mark Taylor’s secret was out big time. A book published that year— Leonard Bernstein by Humphrey Burton—detailed his intimate relationship with the late composer of West Side Story fame. It was very juicy stuff for the office. As the court put it, plaintiff became the hot topic at the water cooler. Two years later he was fired as Director of External Affairs for NYUMC.

Unfortunately for Mr. Taylor, juicy gossip does not a discrimination suit make and his Civil Court award in the amount of $1.4 million (the trial court had already reduced the $2 million jury verdict) was reversed and his case dismissed.

Plaintiff claimed that one of the bosses, defendant Peter Ferrara, had an “anti-gay” animus and that he was responsible for the decision to fire him. While plaintiff showed that there was “no love lost” between the two men and that he had filed a complaint about Ferrara in 1995 for some off-color comment he made (which resulted in counseling for Ferrara), Mr. Taylor still failed to prove discrimination.

According to the court, Mr. Taylor was not fired because he was gay. Defendants showed that terminating Mr. Taylor was the end result of an ongoing budgetary and reorganization process, neither of which was a pretext for plaintiff’s discharge. Once the defendants showed the firing was a legitimate business decision, it became Mr. Taylor’s burden to prove that discrimination was their real motive and that “their business decisions would not have been made but for a discriminatory motive.”

As the court also noted, “mere personality conflicts must not be mistaken for unlawful discrimination” and being openly gay (or famously gay by being outed in print) does not insulate the employee from legitimate business decisions that result in his termination. It was not enough for Mr. Taylor to believe he was fired because he was gay; he had to have the proof. The Appellate Term said he came up short, particularly since it turned out defendant Ferrara had nothing to do with the decision to fire him. Taylor's case was dismissed.

In West Side Story, Leonard Bernstein’s Jets put it this way: “You're never alone, You're never disconnected! You're home with your own: When company's expected, You're well protected!” Like it or not, New York is an “at will” employment state. When the ax falls—as long as it falls for legitimate business reasons—you are alone and you’re completely unprotected, and neither skin color, sexual preference, age nor religion will buy you job security. Get fired for the wrong reasons, however, and Riff, the leader of the Jet’s said it best: “We challenge you to a rumble. All out, once and for all.”

You don’t have to be the same as everyone else at work, or even be liked or understood. That’s the stuff of gossip. But if you do your job, you can’t be fired because you’re different. That’s the stuff of discrimination and something worth fighting about, "all out, once and for all."

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Posted In: Employment Discrimination , Homosexuality , New York State Courts

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New Jersey Supreme Court: Culter v. Dorn

As they say in Jersey, “You talkin' to me?”

That question had to be in Jason Culter’s mind every time he heard comments in the office about “those dirty Jews.” Every time he was referred to as “the Jew.” Every time he was asked by his boss “where [his] big Jew… nose was?” And the time his coworker suggested that we should “get rid of all those dirty Jews.”

And what if all those folks making the comments were armed. Do you call the police?

You don’t if you’re a cop.

And you don’t if the people making the comments were also cops and coworkers.

This was the work environment at the Haddonfield New Jersey Police Department. Not exactly Jersey’s Finest.

Culter was reluctant to make waves and thought he was thick-skinned enough to ignore it all, but a few threatening incidents and comments too many put him over the top. He brought an action under New Jersey’s Law Against Discrimination (LAD) claiming he was subjected to a hostile work environment because he was Jewish. In its defense, the police department claimed Culter was a willing participant in all the fun and that it was all just harmless police department chop busting. The judges were not amused and seemed not to get the joke.

According to the court, “The LAD’s promise of a discrimination-free workplace” extends to matters of faith. “Antagonistic, degrading, or demeaning conduct in the workplace that is directed at or about one’s religious faith, or ancestry, can be discriminatory and can amount to an unlawful hostile environment.” The Haddenfiled precinct was such a place.

The court found that Culter met the threshold for demonstrating a religion-based discriminatory work environment. It also found that the standard of proof to demonstrate a religion-based hostile environment was no different than what was required to show a sexually or racially-based hostile workplace. Hatred and job-related abuse of authority come in all shapes and sizes, but it’s all equally unacceptable.

Given the times we live in, one has to wonder what the members of the Haddonfield Police Department were thinking. Or does anti-Semitism make you both reckless and clueless. These cops would have been better off if they followed there own advice and remained silent. After all, the original “Miranda” warning comes from an old Jewish book (Proverbs 17:28) which says this: “Even a fool is thought wise if he keeps silent, and discerning if he holds his tongue.” Alas, such was not the case here, and before the New Jersey Supreme Court, the Haddonfield Police Department didn’t have a prayer.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Employment Discrimination , Injuries , Other State Courts , Religion , Speech

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New York State Court of Appeals: Smalley v. Dreyfus Corporation

New York State’s highest court affirmed that New York is an at-will employment state: absent a specific contract (other than to be hired) or a union agreement, employees can be fired for any reason (but not the wrong reason—see New York Employment Discrimination). The court says employment is a type of contract, and if you get fired you cannot sue the boss for fraud or for inducing you to work for the employer before firing you. The court left open the possibility that with the right facts, there might be a claim of fraudulent inducement if it can be shown that you were damaged and that it was the employer’s plan to fire you all along. But being fired or losing your job from a merger or cutbacks is acceptable in New York, at least according to the Court of Appeals. The bottom line: be careful who you choose to work for.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Employment Discrimination , New York State Courts

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