The following case summaries are provided for descriptive purposes only and are not part of the Director's decision. |
DIRECTOR'S ORDERS: CALENDAR YEAR 2004
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January 2, 2004 |
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Complainant filed a verified complaint with the Division alleging that his employer, a U.S. subsidiary of a corporation based in the former Yugoslavia, discriminated against him and terminated his employment based on his Serbian national origin. Complainant contended that after civil war broke out in former Yugoslavia, his employer systematically terminated almost all employees of Serbian origin, and treated non-Serbian employees more favorably than Serbs. The employer denied that national origin played any role in its decision to discharge Complainant, and asserted it discharged Complainant because, despite extensions of time and renegotiated terms, he defaulted on loans he received from Respondent. Following an administrative hearing, the administrative law judge dismissed the complaint, concluding that Complainant failed to establish by competent, credible evidence that his employer discharged him because of his Serbian origin or that the employer treated non-Serbian employees more favorably than Serbian employees.
The Director found the ALJ’s conclusions to be supported by the evidence in the record, and adopted the ALJ’s recommended dismissal of the complaint.
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January 26, 2004 |
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Complainant filed a verified complaint with the Division alleging that her employer violated the LAD by refusing to reasonably accommodate her disability (a pregnancy induced back problem), and also violated the New Jersey Family Leave Act (NJFLA) in refusing to provide her with time off from work to care for her newborn child. Following an administrative hearing, the administrative law judge dismissed the complaint, concluding that the employer met its obligation to reasonably accommodate Complainant, and that Complainant was not entitled to leave pursuant to the NJFLA because she requested additional time off due to her own medical condition.
The Director rejected the ALJ’s conclusions and instead determined that the employer violated both the LAD and the NJFLA. Regarding the LAD violation, the Director concluded that neither the offer to permit Complainant to work part time nor the suggestion that she reapply once she no longer needed an accommodation satisfied the employer’s reasonable accommodation obligations. In addition, the Director concluded that, based on the specific evidence in the record, the additional time off Complainant requested would not have imposed an undue hardship on her employer. Regarding the NJFLA violation, the Director concluded that the employer failed to provide Complainant with appropriate notice of her right to take leave to care for her child under the NJFLA. The Director further concluded that the employer violated the NJFLA by refusing to grant Complainant NJFLA leave in addition to the federal leave she had taken for her own disability. Accordingly, the Director reversed the ALJ’s dismissal of the complaint and awarded Complainant back pay with interest and emotional distress damages, and assessed statutory penalties for each law violated. The Director also ordered Respondent to revise its policies regarding family leave and reasonable accommodation to comply with New Jersey law.
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March 1, 2004 |
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On September 22, 2000, Complainant filed a verified complaint with the Division on Civil Rights (Division), alleging that she was subjected to disciplinary action because of her race and as a reprisal for having previously filed a complaint alleging race discrimination and reprisal against Respondent with the Department of Human Services (DHS) in February 1999, and that this violated the LAD. Respondent asserted that Complainant was disciplined for non-discriminatory reasons consistent with its policies regarding absenteeism. Before filing her Division complaint under the LAD, Complainant had filed an internal departmental complaint with DHS challenging the same disciplinary action the was the basis of her Division complaint. After a departmental hearing, DHS determined that Complainant was not discriminated against. Subsequently, a finding of probable cause was rendered by the Division, and the case was transmitted to the Office of Administrative Law (OAL) for a hearing. The administrative law judge (ALJ) did not hear the claims on the merits, but rather summarily dismissed the complaint on the grounds of issue preclusion, specifically, res judicata, collateral estoppel and the entire controversy doctrine.
The Director found that the ALJ’s summary disposition of Complainant’s claim was erroneous because the DHS departmental hearing did not warrant the application of these principles to preclude Complainant from having her LAD claim heard before the OAL. Therefore, t he Director rejected the ALJ’s recommended dismissal of the complaint and remanded the complaint to the OAL for a hearing on the merits.
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June 1, 2004 |
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Complainant filed a verified complaint with the Division alleging that Respondent discriminated against him because of his sex in violation of the LAD. Complainant contended Respondent’s "Ladies Night" policy admitted women to its restaurant free of charge and gave them discounts on drinks, but charged men, including Complainant, an admission charge of $5.00 and normal drink prices. Respondent asserted that no violation of the LAD occurred because its "Ladies Night’ policy was not intended to discriminate against men, but rather, had a legitimate commercial goal to increase patronage, and that the small price differentials at issue do not present the kind of harm the LAD was intended to address. Following an administrative law hearing, the Administrative Law Judge (ALJ) issued a partial summary judgment motion in favor of Complainant, finding Respondent liable for violating the LAD’s proscription against gender discrimination.
The Director found that the ALJ’s conclusions were well supported by the plain language of the LAD, as well as the spirit of the LAD. He was also persuaded by several out-of- state court decisions which held that similar "Ladies Night" policies were in violation of their respective civil rights laws. The Director adopted the ALJ’s decision and ordered that the matter be returned to the Office of Administrative Law for a hearing on the issue of the imposition of injunctive relief, the assessment of a penalty, and the award of damages and other appropriate relief. |
July 26, 2004 |
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A junior high school student (L.W.) and his mother filed a complaint alleging that the board of education failed to take appropriate corrective action when the student was repeatedly subjected to bias-based harassment, including physical assault, by other students who perceived him to be homosexual. The Division’s investigation disclosed that the harassment and assaults continued after the complaint was filed, culminating in two separate assaults in the first weeks of L.W.’s freshman year in high school, after which he withdrew from school. Although the school administrators applied a progressive discipline approach to warn and discipline various students who were involved in the bias-based harassment, both new and repeat violators continued to harass L.W. based on perceived homosexuality. Following an administrative hearing, the administrative law judge dismissed the complaint, concluding that the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:1-5 to-49, does not provide a cause of action for bias-based student-on-student harassment in New Jersey’s schools. The ALJ further concluded that even if bias-based peer harassment were actionable under the LAD, a school district would not be liable for such harassment unless it failed to meet the minimal standards the federal Department of Education imposes on its funding recipients - - imposing liability only for deliberate indifference to known incidents of sexual harassment. The ALJ concluded that the school district’s disciplinary actions in this case would meet those federal standards.
The Director rejected the ALJ’s legal conclusions and instead relied on prior decisions of the New Jersey Supreme and Appellate Courts to conclude that bias-based student-on-student harassment will violate the LAD where it is severe or pervasive enough to make a reasonable student of the victim’s protected class find the school environment hostile or abusive. The Director further concluded that a school district will be liable for such harassment when the school administration or its agents or employees knew or should have known of the bias-based harassment and failed to take measures reasonably calculated, in light of the known circumstances, to stop it. Applying those standards to the evidence presented at the hearing, the Director concluded that the school district violated the LAD in permitting a bias-based hostile environment to deprive L.W. of the same educational opportunities afforded to other students. To eradicate the bias-based hostile environment and prevent further discriminatory actions, the Director ordered the school district to undertake specific preventative and remedial actions, including revising its anti-discrimination policies and strengthening its training, complaint processing and information-dissemination procedures. The Director also awarded both L.W. and his mother damages for the emotional distress they suffered as a direct result of the bias-based harassment, and imposed a statutory penalty. |
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