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Union, New Jersey, Legal Blog

How employment contracts complicate harassment cases

Employees who are victims of sexual harassment may face hurdles when it comes to speaking out about their experiences. This is because employers put arbitration clauses inside of their contracts. Therefore, victims don't have the right to go to court to pursue legal action, and they generally can't appeal an arbitrator's decision. One attorney even stopped defending employers after finding out what their contracts said.

While arbitration may seem to be stacked against an employee, one lawyer didn't see it that way. He said that cases brought to court could easily be dismissed whereas an arbitrator will hear both sides equally and is therefore more likely to work toward a solution to the problem when there is common ground. This lawyer defends employers in harassment cases, and he says that there can be multiple ways to achieve justice for victims. Despite this defense of arbitration clauses, lawmakers are attempting to get rid of them.

Older workers not favored by IBM

According to data from ProPublica, IBM has gotten rid of roughly 20,000 workers aged 40 and older over the past five years. That is roughly 60 percent of those who work for the company. This has been accomplished by asking older employees to take early retirement, laying them off or simply terminating them outright. In some cases, workers in New Jersey and around the country were terminated and rehired as consultants.

IBM says that it is proud of its employees and complies with the law. ProPublica and Mother Jones used stories from over 1,000 former IBM workers as well as company documents to uncover the allegedly widespread age discrimination. The shift toward a preference for younger workers began in 2014 as the company wanted to focus more on cloud storage and analytics. Under the Age Discrimination in Employment Act, it is illegal to discriminate against people who are aged 40 or older when making employment decisions.

Proving age discrimination at work

The Age Discrimination in Employment Act of 1967 makes it illegal to fire people based on their age alone. However, it may be difficult for a New Jersey worker or anyone else to prove that it was the primary factor for being terminated. To prove a case of age discrimination, it may be necessary to look at overall trends within the company.

For example, people could show that older workers weren't being promoted or that they were the only ones who got laid off. Ageism may also be easier to prove if younger people hold the majority of leadership positions or overall positions within a company. Of course, it is possible that a supervisor or owner made a statement indicating that a person's age was the reason why he or she was being let go. If such a statement is made, a worker should look for anyone who could verify that fact.

Worried about employer retaliation if you report discrimination?

People face discrimination at work every day in New Jersey. Despite state and federal laws intended to protect workers, they still get harassed and mistreated by managers and co-workers for their gender, age, race and other factors they have no control over. This can quickly lead to a hostile work environment. In some cases, discrimination can become an abuse of power, such as in cases of quid pro quo sexual harassment.

Many workers facing harassment and discrimination at work hesitate to report the issue. They rightfully worry about the potential for retaliation, as well as the potential impact for their future career. While it can be terrifying to stand up for yourself against harassment and abuse, doing so protects your rights and prevents your employer from doing the same thing to someone else in the future.

Google sued for unlawful discrimination

Employers in New Jersey and the rest of the U.S. are prohibited from discriminating against workers in all aspects of employment on the basis of certain protected statuses. Recently, Google was sued by a former employee of Youtube for its allegedly discriminatory recruiting and hiring practices.

According to the lawsuit, Google reportedly directed its recruiters to purge all applications that it received from white or Asian males. The recruiters were told that they should instead only search for applicants who were Hispanic, female, black or Latinx. The former Youtube employee claims that he complained to Google about its stated hiring practices and was demoted and then fired as a result.

EBSA focuses enforcement on ERISA plans

New Jersey employers that offer certain types of benefit plans have an obligation to observe their fiduciary duties as established by the Employee Retirement Income Security Act of 1974. In fiscal 2017, the Employee Benefits Security Administration that investigates complaints related to employer retirement plans recovered $1.1 billion, with $682.3 million coming directly from enforcement actions. All monies recovered represented a 42 percent increase from fiscal 2016, and the financial results of enforcement actions nearly doubled compared to the year before.

While recouping money in excess of $1 billion, the agency closed 1,707 civil investigations and recommended civil action for 134 cases. Among retirement plan complaints that involved criminal charges, the EBSA resolved 307 criminal cases and indicted 113 people. Convictions or guilty pleas resulted in 79 of the cases.

Discrimination claim rates in 2017

In fiscal year 2017, there were 84,254 charges of discrimination in the workplace made by New Jersey residents and others in America. During that same period of time, the EEOC was able to resolve 99,109 charges and reduce case inventory to 61,621. That was a 16.2 percent reduction during fiscal year 2017, and it was also the lowest number in a decade.

Race and disability charges were among the most common in the past fiscal year. However, cases involving retaliation were the most common overall. They made up 48.8 percent of all charges made to the EEOC. Charges of race discrimination made up 33.9 percent of cases while disability charges were 31.9 percent of all cases handled by the EEOC in fiscal year 2017. Also among the top 10 most frequent types of discrimination claims were those related to age, sex or national origin.

Gender pay discrimination case gets second chance on appeal

The Equal Pay Act offers workers in New Jersey one route for addressing claims of gender wage discrimination. A lawsuit in Maryland citing this law has regained new life after an appeals court ruled that the case should be remanded back to the district court for further consideration. The lower court had originally dismissed it on the grounds that the plaintiffs had not presented sufficient evidence to support their claim.

The Equal Employment Opportunity Commission had filed the lawsuit on behalf of three female civil servants that worked for a state's insurance fraud investigation division. Court filings indicated that the women had been paid less than some men in comparable positions. The lower court based its first decision on the fact that other men doing the same work made less money than the women, but the appeals court decided that all male employees as a class did not have to earn more collectively than all women. Discrimination in pay based on gender among individuals at a workplace sufficed to earn the case a second look.

How power can play a role in the wage gap

When a harasser is removed from a New Jersey workplace, it may not necessarily put an end to the problem. In many cases, victims are vulnerable because of the power dynamics at play. In many cases, power is derived in part based on how much money a person makes. Therefore, it may be possible to link the gender wage gap to sexual harassment.

According to the Equal Employment Opportunity Commission, a power disparity may be one risk factor that can lead to sexual harassment in the workplace. Typically, a woman makes 80 cents for every dollar that a man makes, and there are several possible explanations for this. For some, sexual harassment or other abusive behavior may cause them to leave an industry that may offer higher pay. Those who don't feel good about their working conditions may not do their best work.

Report examines possible age discrimination in online ads

Some New Jersey Facebook users might have seen jobs ads from companies such as Amazon, Verizon and Goldman Sachs that were specifically targeted to them because of their age. This has raised concerns that this could constitute age discrimination. However, a Facebook vice-president said the targeting is no different from when companies run job ads in publications that are aimed at particular demographics.

ProPublica and the New York Times carried out the investigation. One example was a financial planning ad from Verizon that was aimed at users who lived in or had recently visited Washington, D.C., had shown an interest in finance and were 25 to 36.

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