Jottings By An Employer's Lawyer

Friday, January 15, 2010

It Is New Jersey, But Business to Business Sex Harassment?

Although my NJ friends who do the same thing I do have been claiming for some time that the Garden State has surpassed California as the most employer hostile environment, I was still surprised to see this headline, Business-to-Business Sex Harassment? N.J. Court Says It's Real.

Actually, as is often true behind surprising cases, there was a healthy dose of creative lawyering. When the owner of J.T.'s Tire Service, Eileen Totorello felt she was losing a $29,000 a month account because she would not have a sexual relationship with the customer's manager, her lawyer, Elizabeth Zuckerman, brought a quid pro quo, sexual harassment suit under the section of the NJ Law Against Discrimination which makes it illegal to "refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person" on the basis of gender or other LAD-protected categories.

After the trial court dismissed the claim, J.T. Tires appealed. Among the defendant's arguments to the three judge panel was that female business owners did not need protection against sexual harassment, and that such a claim was viable only under the employment provision of the LAD, not the section prohibiting gender discrimination in business transactions.

Not so, according to Judge Susan Reisner, one of the two women on the three judge panel. The decision can be found here.

Not surprisingly, the defendant is considering an appeal. While I don't know much about the NJ Supreme Court, what little I do know, does not make me think it is highly likely that it will turn out differently.


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