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Women in the Economy: A New Take on Planet of the Apes

New Jersey Employment and Civil Rights Trial Attorney Discusses the Role of Women in the Economy

I read a very amusing and very pertinent "commentary" piece by Kathleen J. Wu in the New Jersey Law Journal, September 1, 2014. Being an inveterate nerd from my youngest years, I've always loved the Planet of the Apes and any article in a legal publications that has "Planet of the Apes" in the title is bound to get read by me, even if I have to start reading things about bankruptcy or taxes later on in the article.

Kathleen was talking about "Dawn of the Planet of the Apes," the recent "reboot" of same story from the 70's - the "old" Planet of the Apes franchise - where the apes rise up and conquer the homo sapiens' world. No spoilers here, but the apes win.

Her point in mentioning the movie was to talk about the lack of strong female characters in the film as an example of what's still wrong with our commercial and professional culture. It's an infirmity that still, surprisingly, afflicts many Hollywood movies that aren't about women's issues specifically.

Understanding Sex Discrimination In New Jersey

The New Jersey Office of the Attorney General maintains civil rights fact sheets designed to help employees and employers understand their rights and responsibilities. The fact sheet discussing sex discrimination under New Jersey law gives several examples of what is unlawful conduct. In the most general terms, it is illegal under New Jersey law to treat someone differently or unfairly based on gender in the areas of employment, housing, places of public accommodation, contracting and credit. You cannot refuse to hire someone, promote someone, provide equal pay or any other job benefit based on gender. This absolutely applies to both men and women, though few would argue that the two groups are equally likely to be penalized based on gender.

Sex discrimination in practice can take many forms. Victims may be the target of sexually oriented conduct that is unwelcome. They may feel threatened, marginalized or just uncomfortable because of comments, suggestions, gestures or practices. Going to work can begin to feel like a nightmare. Sadly, many victims suffer significant harm and may eventually leave an employment situation without ever getting justice. 

An Erosion of the Right to a Jury Trial: Lesende v. Borrero v. City of Newark

New Jersey Employment and Civil Rights Trial Attorney Discusses Recent Civil Rights Case 

First of all, I'm putting out there, as per usual, that I'm a plaintiff's employment and civil rights trial lawyer. When I approach fact patterns, I think about them from the victim's perspective first, although I certainly, for tactical and other reasons, also try to imagine how the defendant might respond and what their positions might be. My sympathies and empathies, however, borne of professional training and of personal rearing before that, are with victims of civil rights and employment wrongs.

So it's with that lens that I recently read about two remittiturs - where a judge decides to lower a verdict rendered by a jury - by a federal civil judge in the same civil rights case. Each of these events, in my view, improperly usurped the role of a trial jury and the reason we have juries.

Plaintiff Lesende sued the City of Newark because she was ruthlessly and savagely beaten by a police officer who decided that he was annoyed with her because she was driving too slowly for his taste. Obviously, he was disciplined and terminated; this conversation isn't about whether or not what he did was wrong or right. The City didn't defend on that ground. Plaintiff went to trial and a jury of her - and the cop's - peers, properly instructed on the law, awarded $2.7 million in damages.

The judge, however, decided that the jury was "wrong" because the judge felt that the jury verdict was "too high." Why did he feel this way? Because he did "research" on what other "comparable" verdicts involved.

Road Rage In New Jersey

While some people consider road rage and aggressive driving to be the same thing, true incidents of road rage are criminal offenses, not traffic offenses. Aggressive driving could be considered a precursor to road rage, but it is definitely a milder form of bad driving. Both road rage and aggressive driving greatly increase the chances of a serious car accident. They are an unacceptable and, by many accounts, increasingly frequent sight on New Jersey roadways. A recent study conducted by the Plymouth Rock Management Company shows just how common this problem is.

According to the study, 35 percent of New Jersey drivers have reported experiencing "uncontrollable anger" while driving. More than 10 percent reported actually witnessing physical altercations between drivers. The numbers for careless or aggressive behaviors such as speeding, changing lanes without signaling, and using insulting hand gestures were much higher. Nearly 50 percent of New Jersey expressed concern over their safety on the roads. 

Drivers Not Independent Contractors According To Court

Designating a worker as an independent contractor, rather than an employee, can save a company a substantial amount of money. The Department of Labor has increased efforts to punish companies who use this designation improperly. The Internal Revenue Service, too, has sought to punish employers who misclassify workers as independent contractors. The practice has continued because the financial temptation to misclassify is simply too great.

A recent decision by the Kansas Supreme Court means employment rights for hundreds of drivers doing work for FedEx. FedEx has been sued in several class action suits around the country by drivers who contend they are employees, but are classified as independent contractors by the shipping company. The lawsuits come from current and former drivers hired between 1998 and 2007.

New Jersey Employment and Civil Rights Lawyer Discusses Rush Limbaugh's Recent Comment "No Means Yes."

Seriously, Rush? Really?

I mean, I realize you're intellectually dishonest, unjustifiably arrogant, of weak character, a hypocrite, a liar, a racist, far stupider than you think you are, but are you really this stupid?

When, exactly, does "no mean yes?" what is that, your super-power? You can tell when a woman wants to have sex even when she says no? Worse, you want to tell us that others have this super-power too?

Guess what, Rush: No one can tell 100% of the time. Which means no one should be guessing any of the time.

The Cost Of Automation

The dream of self-driving cars will likely be realized in a matter of years. While public acceptance of autonomous vehicles might take decades, the technology already being tested is likely a safety improvement over the average human driver. As the scope and power of technology improves, is it possible that the capability of humans diminishes? Some critics are suggesting that the humanity is allowing computers to be responsible for too many important facets of everyday life. By turning over our traditional responsibilities, we may be losing the ability to do things for ourselves.

The large majority of fatal car accidents are caused by human error. More than 20,000 lives would be saved every year in the United States alone if those errors could be eliminated. Few would argue that a little help in "keeping our edge" would be worth thousands of lives. The issue is really more about making sure that people are still learning the important lessons that technology can obscure. Children are still taught to add, subtract, multiply and divide, despite the fact that calculators can perform the function faster and more reliably. 

Women In Management Often Face Personal Criticism

The American workplace can be an unfair and hostile place. While the situation for women has improved in some ways, old prejudices and sexist behavior are still alive and well. Women in management have often encountered and overcome numerous challenges that their male counterparts have never faced. Gender discrimination is against New Jersey law and federal laws such as the Civil Rights Act and the Equal Pay Act. But discrimination is insidious and continues to express itself in a wide array of employment situations.

A recent study conducted by has identified evidence of one of the challenges faced by women in the workplace. In analyzing workplace performance reviews, the study found that women are substantially more likely to receive negative feedback directed at personality than men. The personality comments appeared in 76 percent of the negative reviews received by women, whereas men received such comments on only 2 percent of negative reviews. 

New Jersey Employment and Civil Rights Trial Attorney Discusses Governor Christie Veto of Bills Protecting Worker's Rights

Or. . .Governor Christie has a patchy record on protecting worker's rights.

I can't deny that Governor Christie has signed into law certain protections for workers. He signed, for example, an amendment to New Jersey's Law Against Discrimination which clearly advanced protection for pregnant women, a protection that had only been implied by the LAD prior to that amendment.

On other hand, two bills that were advanced for the benefit of workers' rights were not signed by the Governor. The first of these was S-783, the "Unfair Wage Recovery Act," which would have brought the State into compliance with the "Lilly Ledbetter Fair Pay Act of 2009," federal legislation that corrected an oversight in the fair pay laws. The federal legislation determined that an illegal act of discrimination occurs each time an employee is paid an unfair amount of money. In effect, each time there's a violation, the two-year statute of limitations would be "restarted" and allow the worker to sue.

Governor Christie "conditionally" vetoed S-783, because he said that the statute should have included language barring plaintiffs from seeking damages from "any discriminatory pay practice that occurred more than two years before the filing of the complaint."

FMLA and Obtaining Tenure in a School District

By Daniel T. Silverman Esquire, Costello & Mains 

Many young female teachers often worry about taking maternity leave prior to achieving tenure. There are protections in place that a school district may not discriminate or retaliate against a woman because she has become pregnant or taken leave. This post does not deal with that issue. Instead, this post addresses how time served is calculated for the purposes of achieving tenure when an employee has taken FMLA (or any other medical leave) prior to receiving tenure.

In the matter of Kolodziej v. The Board of Education of Southern Regional High School District, Ocean County, the Appellate Divisions considered the interesting question of how the exercise of FMLA Leave impacted a teacher's right to tenure. The Plaintiff had begun as teacher for the Defendant School District in 2002. She was absent from school for the entirety of the 2005-2006 school year and returned for the 2006-2007 school year. At the time, tenure was determined by what is commonly referred to as "three years and a day," meaning having taught for three consecutive school years and the first day of the fourth. Plaintiff was laid off as a part of reduction in force (RIF) prior to the 2007-2008 school year.

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