PRESIDENT OCASIO'S INTERVIEW PREGNANT OFFICERS STILL AT RISK INTERNAL AFFAIRS STALKING CONFIDENTIAL AIDE EADY EdPDLaw Editorial: February 8, 2012 As of this date, another grievance was filed on behalf of the pregnant officers.  Walt Kane also ran the story on Kane In Your Corner in December but the Administration still has not implemented any policy to protect the pregnant officers and their unborn children.   EdPDLaw Editorial: September 25, 2011 Hudson County Refuses to Implement Policy to Protect Pregnant Correction Officers Despite Spending Nearly $500,000 to be in Compliance with Title 7 Laws EdPDLaw has been working with PBA Local 109 since October of 2010 grieving to have a policy implemented to protect its pregnant officers.  Shortly after the new Executive Board was sworn into office it was brought to the Board's attention that pregnant officers were being assigned to posts which placed them in direct contact with the inmates threatening the health of their unborn children. Four documented incidents involving pregnant officers were brought to the attention of the Hudson County Administration by way of grievance filed on October 13, 2010: In April 2009, Officer A, 8 months pregnant was assigned to a housing unit and responsible for approximately 70 inmates.  She was involved in a verbal incident which quickly escalated to a physical confrontation.  Fearing for her safety and the safety of her unborn child, she called for assistance (Code Blue).  Officer A, who should have never been placed in that situation, was later disciplined for calling for assistance.  She received a 45 day suspension. On September 21, 2009, Officer B, also 8 months pregnant at the time, was assigned to strip search a female inmate in the shower placing her unborn child at risk from either inmate assault and/or a slip and fall in the shower.  She was assigned to the housing units throughout her pregnancy where she was interacting with approximately 70 inmates on a daily basis. On September 6, 2010, Officer C was nearly injured in an attempted assault by an inmate wielding a chair. She notified her supervisor on August 29, 2010 that she was pregnant, she was still assigned to a housing unit where she was responsible for approximately 70 of inmates. On July 20, 2010, Officer D, having already lost one of her unborn twins and having a high risk pregnancy, was kicked in the stomach while working in holding.  She began hemorrhaging but was denied medical treatment or transportation to the hospital by her supervisor until she completed a report. The County was reminded that there are approximately 31 posts available for these women to be assigned to that would eliminate their exposure to the inmate population without creating an accommodation. Coincidentally, one of these posts is currently manned by a former politician.  One of the above officers applied for and was denied one of these positions, passed over for a junior officer. Shortly after filing the grievance, and not receiving a response to same, the Union supplied the Administration with a copy of Policy by the International Association of Chief of Police which could be used as a model to develop a policy to protect its pregnant officers.  Pregnant women fall in a protected class under the Law Against Discrimination N.J.S.A. 10:5-4, 5-5 (11).  The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 and discrimination on the basis of  pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII and covers employers with 15 or more employees, including state and local governments.  Hudson County has hired the law firm of LeClair Ryan to "investigate and evaluate allegations of sexual and workplace harassment and hostile work environment and discrimination against the County and County employees".  This service costs the taxpayer in excess of $100,000 a year since 2008.  Ironically, in 2008 the firm conducted an audit of all Department policies and neglected to notice that there was no policy set in place to protect the pregnant females.  2007 Resolution. 2008 Resolution. 2009 Resolution. 2010 Resolution.     On April 26th, 2011, with still no response from the Administration, the matter was brought to the attention of a Freeholder and immediately addressed at the Freeholders meeting that evening.  At the meeting the Union was told that it would have a policy to protect its pregnant officers by the next meeting scheduled for May 10, 2011. As of this date, nearly a year later, the Administration has not implemented a policy to protect PBA 109's pregnant officers, yet they have spent in excess of $50,000 to protect the Director's cousin, Sgt. Aviles, who was accused of sexually assaulting a female vendor. It would not cost ONE PENNY to implement a Policy to protect the officer's unborn children.

Sexual Harassment

 There are two forms of sexual harassment, (1) Quid pro quo and (2) hostile work environment.  Keep in mind that sexual harassment is a form of discrimination and that harassment based on "sex" is interchangeable with all illegal forms of harassment, i.e. race, age, religion, natural origin, etc.  These claims fall under Federal Code, Title VII, as well as individual state laws.  (In New Jersey, refer to NJLAD (New Jersey Laws against Discrimination) laws).

Quid Pro Quo

"Quid pro quo" in Latin simply means, "this for that", an equal exchange.  Quid pro quo sexual harassment occurs when an employer attempts to make an employee's submission to sexual demands a condition of his or her employment. It involves an implicit or explicit threat that if the employee does not accede to the sexual demands, he or she will lose his or her job or suffer other adverse employment consequences.

The EEOC (Equal Employment Opportunity Center) defines sexual harassment as:

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

Sexual advances do not have to be overt, but can be subtle in nature, i.e. repeated requests for dates that have been sternly rejected, assignments that involve working with a supervisor who repeatedly makes unwanted advances, repeated touching, etc.

Hostile Work Environment

The Supreme Court defines a hostile work environment as when an employer or fellow employee(s) harasses another employee because of his or her sex rendering the working environment hostile, intimidating or offensive.  Often, the harassing conduct takes the form of unwelcome sexual touchings and comments. However, the harassing conduct need not be sexual in nature; rather, the defining characteristic is that the harassment occurs because of the victim's sex. 

The Courts have determined that there are four "prongs" (equivalent of "elements" in criminal law) that must be met to establish a claim for hostile work environment sexual harassment.

The complained of conduct:

(1) would not have occurred but for the employee's gender; and it was

(2) severe or pervasive enough to make a

(3) reasonable woman believe that

(4) the conditions of employment are altered and the working environment is hostile or abusive.

Element (1) can be proven be merely showing that the conduct would not have occurred but for the complainants sex.  The conduct does not have to be sexual in nature, but can be sexist instead.  (An example of this would be denying a promotion/assignment based on the sex of the applicant.)

Element (2) is more difficult to prove. Typically, the Courts have held that a single incident of harassment would not normally give rise to substantiate a complaint.  More frequently, a complainant recites a series of events, that when taken individually may be harmless, but when viewed together show a pattern of abuse.   This is why it is very important for women in this position to thoroughly document events with dates and times.

Element (3) is an objective assessment of the working conditions and environment through the eyes of a "reasonable woman".  It does not give consideration to how the conduct affected the complainant because it takes into consideration that the complainant may be overly sensitive.  Therefore, the Court considers how the employer treats all females in its employ and will accept incidents of harassment towards other female employees as evidence to meet and satisfy this prong.  It will also accept all incidents of differential treatment towards all minorities employed with the same employer.

The Courts have noted that just because a fellow employee does not complain of illegal activity,  their lack of complaint does not make the activity legal, nor does it create an environment where fellow employees must accept the same illegal treatment.   Just as the Court takes into consideration that one employee may be overly sensitive, it also recognizes that another employee may be more resilient.

Element (4) must show that the complainant's work environment has been altered  to create a hostile work environment.  This can be achieved by examining the employee's work environment prior to the onset of the illegal activity as compared to after.  It should be noted that the condition of the complainant's work environment only need be affected and that monetary income need not be a consideration. Examples can include, shift changes, changes in assignments, receiving less favorable assignments, being repeatedly disciplined for infractions that others are not disciplined, being denied time off, schools, etc. 

Reporting Harassment

Along with the responsibility of identifying harassment, the employee has the responsibility to report it to the employer.   Every agency, by law, should have a method in place for an employer to report acts of sexual harassment.  If your agency does not have a procedure in place, simply write a letter and present it to your supervisor.  (If you are complaining about your supervisor, report it to their supervisor).   If your employer does not take actions to correct the situation, you will need to contact the EEOC and seek the assistance of an employee.

Visit the Case Law Library to read Sexual Harassment Case Law.

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.