The revised Uniform State Memorandum of Agreement Between Education and Law Enforcement Officials was drafted to meet the provisions of the Anti-Bullying Bill of Rights Act, signed into law by Governor Chris Christie on Jan. 5, 2011. The act sets forth standards for preventing, reporting, investigating and responding to incidents involving bullying of students. The revised MOA provides for coordination of efforts between law enforcement and school officials, particularly in cases involving conduct that may constitute a crime or disorderly persons offense under state law. The Attorney General’s Office and Department of Education sent the MOA this week to county prosecutors and county superintendents of schools for distribution to local officials.

“Bullying inflicts incalculable harm on victims, debases the bullies themselves, and degrades the safety and civility of the school environment,” said Attorney General Dow. “This memorandum of agreement will help ensure that school staff and law enforcement authorities throughout New Jersey work cooperatively to investigate and address potential crimes and serious acts of bullying in our schools.”

Research has shown that bullying has severe negative effects on victims, bullies and even observers of bullying. The effects on student victims include behavioral problems (e.g., suicide, violence), school problems (e.g., high absenteeism, poor achievement, and poor concentration), psychological problems (e.g., depression, anxiety, and low self-esteem), physical/health problems (e.g., stomach aches, dizziness, and headaches) and social problems (e.g., difficulty making friends, difficulty adjusting to their environments, loneliness). Bullies are more likely to get into fights, steal and vandalize property, drink alcohol or smoke, carry weapons, receive poor grades and perceive the school environment as negative, according to research.

The revised MOA was developed by the Attorney General’s Education and Law Enforcement Working Group based upon earlier memoranda of agreement issued in 1988, 1992, 1999 and 2007. It was developed after thorough consultation with the education and law enforcement communities in New Jersey. The revised MOA was prepared for adoption by local law enforcement and by all public school districts and charter schools.

The Anti-Bullying Bill of Rights Act requires each school district to adopt a policy prohibiting “harassment, intimidation or bullying,” as defined in the act. The revised MOA notes that while the act did not create a criminal offense of “bullying,” bullying conduct may violate one or more provisions of the New Jersey Criminal Code if it includes, for example, assault, harassment, threats, robbery or sexual offenses. As in past versions of the MOA, school officials agree to refer cases to law enforcement when they believe that certain criminal offenses have been committed.

In the past, schools typically would suspend their own investigations in such cases in deference to law enforcement until the law enforcement investigation had been completed. However, the Anti-Bullying Bill of Rights Act calls for schools to complete harassment, intimidation or bullying investigations within 10 school days. As a result, proper coordination between school officials and law enforcement is critical. The revised MOA provides enhanced standards for schools and law enforcement regarding reporting and information sharing, the preservation of evidence, the coordination of investigations, and testimony at school student conduct hearings.

Under the revised MOA, school and law enforcement officials agree to jointly review such matters as they plan or proceed with their respective investigations. The MOA specifies that law enforcement may request that a school not interview certain witnesses or not seek certain evidence in order to avoid interfering with an ongoing criminal investigation. Law enforcement agencies agree to testify at any suspension or expulsion hearing, provided that the information is kept confidential and prior notice is given to the county prosecutor’s office, which can preclude such testimony where it would interfere with an ongoing investigation or prosecution.

Police are required under the revised MOA to notify the school principal when a student or a student’s parent or guardian reports to police that a student has been a victim of harassment, intimidation or bullying, provided the offender, if a juvenile, has been charged or is under investigation for a criminal offense in circumstances where the information may help the school maintain order, safety or discipline, or where it may assist the school in placing the offender in appropriate programs.

School officials, in turn, agree to inform students that they may report an alleged offense to law enforcement, but school officials are not to express an opinion to the victim as to whether a crime has been committed. The revised MOA also provides guidance regarding the statutory duty of law enforcement officers to assist school attendance officers, also known as truant officers. For example, when practicable, police should accompany attendance officers to the homes of students in circumstances where attendance officers have concerns for their safety.

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Named as sole Respondent in the Finding of Probable Cause, the Franklin Township Board of Education oversees an elementary district made up of four schools. According to the Division, the district did not deal adequately with the persistent verbal harassment of an African-American female student that began when the victim was in third grade and continued through her sixth-grade year. The alleged harassment consisted of race-based name calling and other bias-driven remarks by other students on the school bus and elsewhere while the girl attended Main Road School from 2005 through 2009.

“Our investigation suggests this girl was subjected to repeated racial harassment,” said Director Le. “The student conduct described in this case is deplorable, and the lack of a genuinely effective response by the school district illustrates a concern we are committed to addressing statewide through both awareness and enforcement.”

The Franklin Township school district has denied that it engaged in unlawful discrimination, or that the girl was a victim of racial harassment or a hostile school environment. The district also has asserted that any incidents of harassment or bullying reported by the girl were investigated immediately by administrators and acted on appropriately. In addition, the district has said it takes a proactive approach to preventing harassment, intimidation and bullying, and to educating students regarding diversity.

However, the Finding of Probable Cause notes that the alleged harassment persisted over a four-year span despite numerous complaints from the girl’s parents to the school’s principal and the Franklin Township schools superintendent.

According to the Finding of Probable Cause, the girl was so distraught over the harassment she told her parents she did not wish to go to school. In May 2006, she missed a total of 15 days. Her parents requested she be transferred to another school for the coming academic year and were denied.

The race-based harassment continued during the girl’s fourth-grade year and in subsequent years, until she graduated Main Road School in June 2009. The harassment involved multiple alleged offenders, and reported incidents increased in number and intensity.

Division Director Le said that, for school districts, responding to reported incidents of bullying after-the-fact may not be sufficient in cases where educators have been made aware of a pattern of repeated harassment.

“School districts have a responsibility to create and maintain a harassment-free learning environment. And they have a legal duty, when confronted with reports a student is being bullied, to take affirmative steps that are ‘reasonably calculated’ to end it,” said Le.

A Finding of Probable Cause does not resolve a civil rights complaint. Rather, it means the State has concluded its preliminary investigation and determined there is sufficient evidence to support a reasonable suspicion New Jersey’s Law Against Discrimination (LAD) has been violated. The LAD provides that each Respondent found to have committed a violation is subject to a penalty of up to $10,000. The LAD also provides for other remedies, including compensatory damages and injunctive relief, such as changes in the employer’s policies and management/staff training.

Now that the Division has issued a Finding of Probable Cause, the Franklin Township Board of Education case will be referred for a process known as Conciliation. If Conciliation is not successful, the matter will be referred for a non-jury trial before an Administrative Law Judge. Once the trial is completed, the presiding Administrative Law Judge will issue a written Initial Decision.

Investigator Alexander Garcon, Camden Office Manager John Beauchamp and Staff Attorney Estelle Bronstein handled the Franklin Township Board of Education matter on behalf of the State.

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Under the NJFLA, it is unlawful to discharge or retaliate against an employee for asking questions about family leave, attempting to take family leave, or filing a complaint alleging a violation of the NJFLA.

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There are certain exceptions. Places of public accommodation which, by their nature, are reasonably restricted to individuals of one gender (such as dressing rooms or gymnasiums) may deny access to the accommodation to members of the other gender. Also, the provisions of the LAD that govern public accommodations do not apply to a place of public accommodation that is “in its nature distinctly private” or to schools operated by bona fide religious institutions. However, it is unlawful for a private club or association to discriminate against a member with respect to the advantages and privileges of membership on the basis of race, creed, color, national origin, nationality, ancestry, marital status, domestic partnership status, sex, or affectional or sexual orientation.

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The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating in any job-related action, including recruitment, interviewing, hiring, promotions, discharge, compensation and the terms, conditions and privileges of employment on the basis of any of the law’s specified protected categories. These protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses. The LAD prohibits intentional discrimination based on any of these characteristics. Intentional discrimination may take the form of differential treatment or statements and conduct that reflect discriminatory animus or bias.

Moreover, an employment policy or practice that is neutral in its terms may be deemed unlawful if the policy or practice has an adverse impact on protected groups. However, the disparate impact may be lawful if the employment policy or practice meets an important, legitimate business need that cannot be served with a non-discriminatory measure. For example, screening out applicants for employment based on certain physical traits, such as setting a minimum height requirement, may exclude disproportionate numbers of women and people of certain national origins or ancestries. If the height requirement has a disparate impact on a protected group and is not related to an applicant’s ability to perform important job duties, it may be deemed unlawful. To establish the lawfulness of a policy or practice that has a demonstrated disparate impact, an employer would have to establish that the policy is job related and consistent with business necessity, and that effective alternative practices are not available.

A physical requirement is more likely to be regarded as unlawful if there is an alternative measure of job related abilities, such as strength or stamina tests, that would provide a more accurate evaluation of a candidate’s ability to perform without screening out qualified members of groups that historically have been excluded from particular jobs.

Sexual Harassment

The LAD also prohibits harassment based on protected characteristics such as race, sex or nationality. Under the LAD, sexual harassment includes unwelcome sexual advances, requests for sexual relations or other verbal or physical conduct of a sexual nature. There are generally two types of sexual harassment. Quid pro quo harassment occurs when an employer, or an employer’s agent, implicitly or explicitly attempts to make submission to sexual demands a condition of employment. Thus, an employee may perceive that he or she must tolerate sexual advances or engage in a sexual relationship in order to continue employment, to achieve advancement, or to avoid adverse employment consequences such as poor evaluations or demotions. Similarly, it is unlawful for an employer or an employer’s agent to condition favorable treatment such as promotions, salary increases, or preferred assignments, on an employee’s acceptance of sexual advances or relations.

Hostile work environment sexual harassment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her gender. Such conduct creates an unlawful work environment when it is severe or pervasive enough to make a reasonable person of the employee’s gender believe that the conditions of employment have been altered and the working environment has become hostile or abusive. The conduct does not have to be sexual in nature and does not have to involve physical contact. For example, if a woman is subjected to non-sexual taunts or adverse treatment because of her gender, her work environment may be deemed unlawfully hostile and abusive. This analytical framework may also be applied to hostile work environments created because of an employee’s race, nationality, creed, disability, or other characteristics enumerated by the LAD. For example, racial slurs or offensive comments or jokes about a person’s dress, culture, accent or ethnic background may be severe or pervasive enough to create a hostile or abusive environment that violates the LAD.

Finally, the LAD prohibits employers from denying employment opportunities to people with disabilities unless the employer reasonably determines that the nature and extent of a person’s disability reasonably precludes his or her safe performance of a particular job. In order for the decision to be reasonable, the employer must determine that the employee’s disability precludes the performance of essential duties, not merely hinders the execution of some tasks. Furthermore, before deciding that a person’s disability precludes his or her safe performance of a particular job, an employer must first consider the possibility of making reasonable accommodations, that is, adjustments to the work assignment or workplace, that may enable the person to perform the essential functions of his or her position.

Federal and state courts have reasoned that an employer’s obligation to provide reasonable accommodation may sometimes require an employer to request information about an employee’s abilities and need for accommodation. Accordingly, if an employer has reason to believe that an employee has a disability, the mere fact that the employee does not request an accommodation may not relieve the employer from the responsibility of providing reasonable accommodations that will enable the employee to perform the essential functions of his or her job.

An accommodation may be required even if it causes the employer some inconvenience or cost. An employer must make reasonable accommodations to the limitations of an employee or applicant with a disability unless the accommodation imposes an undue hardship on the operation of its business.

On the other hand, an employer is generally free to distinguish between applicants and employees on the basis of their qualifications, competence and job performance, provided reasonable accommodations are made to qualified people with disabilities.

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It is also unlawful for any bank or financial institution to deny credit or particular terms of a credit transaction (such as loan rates) to an individual on any of these bases.

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The New Jersey Law Against Discrimination (LAD) makes it unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. The LAD prohibits unlawful discrimination in employment, housing, places of public accommodation, credit and business contracts. Not all of the foregoing prohibited bases for discrimination are protected in all of these areas of activity. For example, familial status is only protected with respect to housing. The Division has promulgated regulations that explain that a place of public accommodation must make reasonable modifications to its policies, practices or procedures to ensure that people with disabilities have access to public places. The regulations also explain that under the LAD, these reasonable accommodations may include actions such as providing auxilliary aides and making physical changes to ensure paths of travel.

About The NJ Family Leave Act (FLA)

The New Jersey Division on Civil Rights enforces the New Jersey Family Leave Act (NJFLA), which requires covered employers to grant eligible employees time off from work in connection with the birth or adoption of a child or the serious illness of a parent, child or spouse. The NJFLA’s definition of “parent” includes a parent-in-law or a stepparent. The NJFLA provides for up to twelve weeks of leave in a 24-month period. The 24-month period begins on the first day of the employee’s first NJFLA leave.

Three most frequently asked questions regarding the Family Leave Act:

1. Which employers are covered by the NJFLA?

All employers with 50 or more employees anywhere worldwide must comply with the NJFLA for their New Jersey employees.

2. Which employees are eligible for leave under the NJFLA?

To be eligible for family leave under the NJFLA, an employee must be employed in New Jersey by a covered employer. The employee also must have been employed for at least twelve (12) months for the employer, and must have worked 1,000 base hours in the preceding twelve (12) months.

3. How does the NJFLA relate to the federal Family and Medical Leave Act?

Like the NJFLA, federal Family and Medical Leave Act (FMLA) also provides time off from work in connection with the birth or adoption of a child or the serious illness of a parent, child or spouse. When an employee takes a leave for a purpose covered by both the FMLA and the NJFLA, the leave simultaneously counts against the employee’s entitlement under both laws.

The FMLA provides time off from work due to an employee’s own disability, while the NJFLA does not provide covered employees with leave for their own disabilities. Thus, even though an employee may utilize all of his or her allotted time under the federal FMLA due to his or her disability, the employee may subsequently be entitled to time off under the NJFLA in connection with the birth or adoption of a child or the serious illness of a parent, child or spouse.

The FMLA provides up to twelve weeks in a 12-month period, rather than a 24-month period as provided in the NJFLA.

This information has been brought to you by the New Jersey Family Law attorneys at Garces & Grabler, P.C.

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Named as sole Respondent in the Finding of Probable Cause, the Old Bridge Board of Education oversees a school district made up of approximately 9,600 students, 12 elementary schools, two middle schools and one high school. According to the Division, the district failed to deal effectively with the harassment of a Jonas Salk Middle School student – identified only as H.D. because he is a minor – that began in the fall of 2004 and continued through the end of the school year in 2007.

The harassing conduct included derogatory remarks from other students about H.D.’s perceived sexual orientation, as well as his Jewish faith. On one occasion, the student had papers stuffed down the front of his pants by other students. On another occasion, a middle school staff employee allegedly asked him if he was looking for his purse as the youth checked the lost-and-found. The school district has denied that incident.

But the district’s own documentation shows that, during one stretch between early September 2006 and late January 2007, there were at least 11 reported incidents of harassment against H.D. involving 14 different students. In two of the cases, no action was taken because of a lack of information. In the remaining cases, a total of 12 students received discipline ranging from a verbal warning to after-school detention to in-school suspension. However, the bullying of H.D. continued. The Finding of Probable Cause cites Old Bridge for failing to take affirmative steps to prevent the bullying of H.D., and for dealing with it only via “after-the-fact” discipline, without any prevention measures or efforts at broader outreach to students.

“It appears this student went to school in an extremely hostile atmosphere – a climate in which he was subjected to a level of bias-based harassment and torment that no young person should have to endure,” said Division on Civil Rights Director Chinh Q. Le. “With the new school year about to begin, this is the perfect time to remind school districts they have a duty to create and maintain a safe, nurturing and harassment-free learning environment, and to respond effectively when bullying rears its ugly head.”

H.D. entered Jonas Salk Middle School in September 2004, and the harassment began shortly thereafter. According to a log kept by the youth’s mother and provided to the Division, H.D. was repeatedly targeted for such slurs as “fag” and “fruit.” He was also derided for eating “Jew food.” According to the youth and his mother, these taunts and slurs were aimed at him in school, on the school bus, and on the Internet.

In an interview with a Division investigator, a former principal at Jonas Salk Middle School – the educator retired in June 2006 – recalled most incidents of reported harassment against H.D. listed in the log. While the ex-principal apparently did suspend two students involved in a locker room incident in which paper was stuffed down H.D.’s pants, he said he generally couldn’t recall what disciplinary action he took upon learning of other bullying episodes. He said he rarely documented such discipline unless it involved conduct serious enough to warrant suspension.

The same former principal acknowledged telling H.D. during one conversation that he’d understand if H.D. elected to respond to his tormentors physically. He also acknowledged recommending that H.D. transfer out of Jonas Salk Middle School and attend the township’s other middle school as a solution.

“No matter how well intended, a suggestion that the victim consider resorting to physical aggression against his tormentors, or that he transfer to another school, is neither an appropriate nor a sufficient means for the school district to deal with the unlawful, harassing conduct of its students,” said Le.

Ultimately, the Finding of Probable Cause notes, H.D. became reticent about even reporting further incidents of harassment and bullying at Jonas Salk Middle because doing so never improved his situation. In fact, the Finding of Probable Cause notes, the youth felt he was “becoming known as a snitch,” which threatened to make matters worse.

A Finding of Probable Cause does not resolve a civil rights complaint. Rather, it means the State has concluded its preliminary investigation and determined there is sufficient evidence to support a reasonable suspicion New Jersey’s Law Against Discrimination (LAD) has been violated.

The LAD provides that each Respondent found to have committed a violation is subject to a penalty of up to $10,000. The LAD also provides for other remedies, including compensatory damages and injunctive relief, such as changes in the employer’s policies and management/staff training.

Now that the Division has issued a Finding of Probable Cause, the Old Bridge Board of Education case will be referred for a process known as Conciliation. If Conciliation is not successful, the matter will be referred for a non-jury trial before an Administrative Law Judge. Once the trial is completed, the presiding Administrative Law Judge will issue a written Initial Decision.

Director Le thanked Division Investigator Agnes Roncaglio, Paterson Office Manager Carolyn Paul, Legal Specialist Benn Meistrich, Deputy Attorney General Marisa Slaten and Deputy Attorney General Charles Cohen, Assistant Section Chief, for their work on the Old Bridge investigation and Finding of Probable Cause.

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Under terms of the agreement, Clementon Fire and Rescue of Clementon, Camden County, paid firefighter Merrissa V. Garretson $15,000 last month. The fire company also agreed to give Garretson a positive letter of employment reference whenever contacted by a prospective employer. Garretson resigned from Clementon Fire and Rescue in April 2010. As part of the settlement with Garretson, the fire company made no admission of liability.

“This is a fair settlement that resolves troubling allegations of discrimination against a young woman in a male-dominated work environment,” said Division on Civil Rights Director Chinh Q. Le. “No employee should be treated like a second-class citizen because of his or her gender, and no worker should suffer reprisals for having reported such treatment.”

At age 13, Merrissa Garretson began her employment with Clementon Fire and Rescue in May 2003 as an Explorer. She was promoted to Junior Firefighter in July 2006, and promoted again to Probationary Firefighter in July 2008. In December 2008, Garretson was promoted to the position of Firefighter. At all times, she was a volunteer employee and was not paid by the fire company.

According to her formal Complaint, Garretson approached the fire company’s deputy chief, Randall Freiling, in March 2009 to report repeated, discriminatory remarks by a male firefighter that were demeaning to women generally, and derogatory toward Garretson in particular. Garretson alleged that she later approached Clementon Borough Administrator Jenai L. Johnson, in July 2009, with the same information.

In the aftermath of those two conversations, Garretson received a letter from Administrator Johnson – in August 2009 — advising that a thorough investigation had been conducted, and that corrective action had been taken.

However, Garretson charged in her Complaint, she saw no evidence of a thorough investigation or corrective action.

To the contrary, Garretson alleged, she was subjected after reporting her concerns to such actions as being “bumped” from fire truck assignments in favor of less qualified, less experienced junior firefighters, and having her gear removed from her locker. Garretson filed her formal Complaint with the Division on Civil Rights in November 2009.

Director Le thanked Division Investigator Maurice Sykes and John Beauchamp, Regional Supervisor in the Division’s Camden Office, for their work on the Garretson matter.

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