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COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Federal and state laws in New Jersey protect workers from discrimination on the basis of age, with some important limitations. The federal Age Discrimination in Employment Act (ADEA) sets a minimum age for workers, as well as a minimum number of employees before the statute covers an employer. Until recently, the New Jersey Law Against Discrimination (NJLAD) set a maximum age for protection from certain discriminatory acts based on age. A bill passed in late 2021 amends the NJLAD and other provisions of state law to expand the scope of age discrimination protection. It removed the maximum age and added new a new cause of action for employees. If you feel you have been discriminated against on the basis of your age, it would be worth your while to consult with a New Jersey employment discrimination lawyer at your earliest convenience.

Prior to late 2021, both the ADEA and the NJLAD set age limits for their provisions regarding age discrimination. The ADEA prohibits discrimination on the basis of age against people who are at least forty years old. A thirty-year-old individual fired because of their age, whether the employer considered them too young or too old, would therefore not be able to assert a cause of action. The statute also only applies to employers with twenty or more employees, so a fifty-year-old employee of a business with ten employees would also not have a claim under the ADEA.

The NJLAD, before its recent amendment, prohibited discrimination on the basis of age without regard to the total number of employees. It set no minimum age, so the hypothetical thirty-year-old worker would be able to make a claim. It set a maximum age, however, of seventy years. Specifically, it stated that the prohibition on age discrimination did not prevent employers “from refusing to accept for employment or to promote” a person over the age of seventy. This provided employers with a safe harbor for certain forms of age discrimination against older workers.
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Unlawful sex discrimination takes many forms in New Jersey workplaces. Overt discrimination, such as when an employer directly states an intention not to hire individuals of one gender, might not be as common as it once was, if only because it is less socially acceptable in the 21st century. It persists, though, in both blatant and subtle forms. Sex discrimination can also occur when a policy or practice disproportionately affects people of one gender, even if the employer has no intent to discriminate. The Harvard Business Review (HBR) recently published a study that examines these two forms of sex discrimination, calling them “conscious exclusion” and “unconscious bias.” The study offers some useful observations for New Jersey workers.

Disparate Treatment vs. Disparate Impact Discrimination

Title VII of the Civil Rights Act of 1964, as interpreted by the courts and the Equal Employment Opportunity Commission (EEOC), bars employers from engaging in disparate treatment based on a protected category. It also bars them from maintaining policies or practices that have a disparate impact on employees in a protected category. The New Jersey Law Against Discrimination has similar provisions.

“Disparate treatment” consists of overt acts of discrimination and other acts or omissions that directly affect someone based on their sex or another protected category. Examples include refusing to hire someone because of gender, promoting employees of one gender over employees of another without regard to qualifications or merit, and the various forms of sexual harassment.

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The New Jersey Law Against Discrimination (NJLAD) bars employers from discriminating against employees and job applicants on the basis of many different factors. Despite these protections, ongoing inequalities continue to create disadvantages for many people. The use of salary history is one way that employers might — even unintentionally — perpetuate systems of discrimination. The New Jersey Legislature amended the NJLAD and other areas of state law a few years ago to address this concern. The new law limits how employers may use salary history in the hiring process with regard to members of any “protected class” under the NJLAD. If you feel you have been discriminated against over salary history issues, it would be a good idea to consult with a New Jersey employment discrimination lawyer.

Protected Classes Under the NJLAD

Section 11(a) of the NJLAD identifies eighteen protected classes. These include race, sex, religion, national origin, pregnancy, disability, ongoing military service, age, sexual orientation, and gender identity and expression. Employers may not discriminate on the basis of any of these factors.

Unequal Pay Under the NJLAD

In § 11(t), the NJLAD specifically addresses unequal pay. It prohibits employers from paying employees who belong to a protected class less than other employees.
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Two federal laws, the Americans with Disabilities Act (ADA) of 1990 and the Genetic Information Nondiscrimination Act (GINA) of 2008, protect employees from discrimination on the basis of disability. Part of this protection involves prohibiting inquiries into employees’ medical histories that are not specifically related to those employees’ jobs. The U.S. Department of Justice (DOJ) recently announced that it had settled claims against a New Jersey rail line for allegedly conducting medical examinations and requesting health information from employees in violation of both statutes. If you have been subjected to  disability discrimination in the workplace, reach out to a New Jersey employment lawyer as soon as possible.

The ADA prohibits employers from discriminating against employees and job applicants on the basis of disability. Employers may not require medical examinations of job applicants or employees under the ADA, except to ask about or assess their ability to perform specific job duties. They may require a medical examination for new hires if the examination is the same for every new employee in the same category “regardless of disability.” The ADA allows mandatory medical examinations of employees if they are “job-related and consistent with business necessity.” All other medical examinations or inquiries are prohibited.

GINA protects employees’ and job applicants’ “genetic information,” which it defines as information obtained from genetic tests an individual or their family members, as well as “the manifestation of a disease or disorder” in the individual’s family members. Employers may not request genetic information from employees or job applicants, nor may they request or obtain such information from any third party, except in specific situations. Exceptions include authorization by the employee or job applicant; publicly-available information in a newspaper or book; and “genetic monitoring of the biological effects of toxic substances in the workplace,” provided that the employer has notified the employee and obtained their written consent.
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The New Jersey Law Against Discrimination (NJLAD) provides a wide range of protections for employees and job seekers. It prohibits employers from discriminating on the basis of factors like race, sex, religion, disability, and more. It also addresses retaliation against employees who report alleged discrimination or harassment, either within the company or to a government agency like the Equal Employment Opportunity Commission (EEOC). A lawsuit filed in a New Jersey court in the fall of 2021 alleges, in part, that the plaintiff’s employer unlawfully retaliated against her because she reported an incident of alleged sexual harassment. If you are facing retaliation for reporting harassment, please reach out to a New Jersey employment lawyer at your earliest convenience.

The NJLAD and other employment laws view sexual harassment as a type of sex discrimination. When one or more people in the workplace engage in harassment based on sex, such as by making bawdy jokes or inappropriate sexual comments, their conduct could violate the law. Harassment creates an unlawful hostile work environment, according to the EEOC, when it is “severe or pervasive enough…that a reasonable person would consider [it] intimidating, hostile, or abusive.” In order for an employer to be liable for sexual harassment, they must have been aware of the problem and failed to address it.

The EEOC notes that “petty slights, annoyances, and isolated incidents” might not “rise to the level of illegality.” A single incident can support a hostile work environment claim, but it must be quite severe. Many small incidents, on the other hand, can create a hostile work environment over time. Reporting concerns about workplace harassment is therefore very important and protected by the NJLAD.
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Unwelcome sexual remarks in the workplace can violate employment statutes in New Jersey that prohibit discrimination on the basis of sex. This kind of conduct becomes unlawful sexual harassment when it is so severe or pervasive that an objective observer would find it to be a hostile work environment. An employer may be liable for damages under laws like the New Jersey Law Against Discrimination (NJLAD) when management is aware of the harassment but does not take reasonable steps to correct the situation. A lawsuit filed in September 2021 in a New Jersey state court alleges sexual harassment by several executives and others at a mortgage lender. If you have been subjected to sexual harassment in the workplace, you would be wise to consult with a New Jersey employment attorney as soon as possible.

The NJLAD prohibits employment discrimination based on sex, gender, and numerous other factors. Harassment on the basis of any protected category could violate the law, such as harassment of an employee because of their religion or religious attire. Sexual harassment is particularly insidious in workplaces around the country. The U.S. Supreme Court first recognized sexual harassment as a form of sex discrimination under federal law in a 1986 decision, Meritor Savings Bank v. Vinson.

The Meritor decision addressed “unwelcome sexual advances that create an offensive or hostile working environment,” and found that a plaintiff does not have to prove direct economic losses, such as a demotion or cut in pay, to establish that discrimination occurred. The impact of enduring a hostile work environment can be enough, the court held. The New Jersey Supreme Court adopted the Meritor ruling in a 1993 decision addressing a hostile work environment claim under the NJLAD.
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Employment laws in New Jersey and around the country protect workers from discrimination by their employers on the basis of disability. Both state and federal law define “disability” broadly to include a wide range of conditions, including injuries, illnesses, and congenital conditions. After nearly two years of the COVID-19 pandemic, we are learning more about the long-term effects of the disease on some people. These conditions, often known as “long-haul COVID” or simply “long COVID,” can include symptoms affecting people’s respiratory, neurological, digestive, and reproductive systems, among others. Laws addressing disability discrimination in the workplace may protect people suffering from long COVID. Not only would employers be barred from disparate treatment due to long COVID symptoms, but they would also be obligated to provide reasonable accommodations for those symptoms.

The New Jersey Law Against Discrimination (NJLAD) and the Americans with Disabilities Act (ADA) of 1990 prohibit employment discrimination on the basis of disability. The NJLAD’s definition of “disability” includes a “physical…disability…[or] infirmity…which is caused by…illness.” The statute lists many specific conditions across a broad range, such as visual or hearing impairments, paralysis, autism spectrum disorder, and HIV infection or AIDS. The initial language regarding “illness,” however, suggests that the long-term impact of disease also qualifies as a disability.

The ADA specifically states that courts and others should construe its definition of “disability” “in favor of broad coverage of individuals…to the maximum extent permitted by the” statute. It defines the term, in part, as a “physical…impairment that substantially limits one or more major life activities,” including “walking, standing, lifting, bending, speaking, [and] breathing.”
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New Jersey employment laws protect employees from discrimination on the basis of numerous factors, including pregnancy and related medical conditions. Despite some progress in recent decades, discrimination against workers who become pregnant remains a problem in New Jersey and around the country. Pregnancy discrimination violates the New Jersey Law Against Discrimination (NJLAD) and its federal counterpart, Title VII of the Civil Rights Act of 1964. Both federal and state laws also protect workers’ right to family and medical leave and prohibit employers from discriminating or retaliating against employees who use leave time that they have accrued. A lawsuit filed in state court in August alleges that an employer discriminated against the plaintiff on the basis of pregnancy and retaliated against her for using family leave. The defendant removed the case to federal court in early October.

Both the NJLAD and Title VII prohibit employers from taking adverse actions against employees on the basis of pregnancy. The NJLAD goes further by requiring employers to provide pregnant employees with reasonable accommodations for conditions related to their pregnancies. This may include additional breaks for water or to use the restroom, as well as leave from work as long as this does not pose an “undue burden” for the employer.

The Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) both require covered employers to allow qualifying employees to take leave for certain reasons without any risk to their jobs. Both laws provide up to twelve weeks of leave during a twelve-month period. Reasons for leave may include caring for a newborn child. Employers may not interfere with an employee’s use of accrued leave time, nor may they retaliate against an employee for using leave.
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Remote work, telecommuting, and other “alternative” forms of work were already becoming increasingly common before the COVID-19 pandemic. In early 2020, many thousands of workers found themselves having to adapt quite quickly to work-from-home scenarios as part of New Jersey’s public health response. An executive order (EO) from New Jersey’s governor effectively mandated remote work for many employers and employees for over a year. That mandate ended in the summer of 2021, but many workers would prefer to continue working from home. This raises questions about employees’ rights regarding remote work. If you work from home and have questions regarding your rights to continue to work remotely, please contact a New Jersey employment lawyer today.

Work-from-Home Orders

The governor issued EO 107 in the early days of the COVID-19 pandemic, on March 21, 2020. The order directed New Jersey residents to “remain home or at their place of residence” at most times, with exceptions for activities like obtaining food and other goods, seeking medical care, and going to work. Paragraph 10 of EO 107 required employers to “accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” This provision took effect immediately.

The governor issued EO 243 over a year later, on May 26, 2021. This order revoked paragraph 10 of EO 107, effective June 4. Employers who required their employees to return to the worksite would still be required to follow an order issued last November, EO 192, regarding workplace safety during the pandemic.
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Discrimination against Muslims, people with Arab heritage, and people perceived to belong to either or both of those groups has been an ongoing problem in New Jersey and around the country for a long time. This includes workplace discrimination and harassment because of a person’s religious beliefs or practices, or stereotypes about that person’s religion. New Jersey employment discrimination on the basis of religion violates both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD). With regard to Muslim workers, this type of discrimination can, in some cases, overlap with discrimination based on national origin or race. A New Jersey woman brought attention to this issue earlier this year with allegations of discrimination and harassment because of her Muslim faith. This led to a commitment by the employer to change how it investigates such claims. Another case, which alleged race discrimination by the same employer, resulted in a lawsuit and settlement.

Title VII bars employment discrimination on the basis of five factors: race, color, religion, national origin, and sex. This includes a wide range of actions by managers, supervisors, co-workers, customers, and others. The NJLAD also prohibits discrimination based on these factors and includes many more protected categories. Employers may not take overtly discriminatory actions against someone because of a protected factor, such as refusing to hire job applicants who are or are perceived to be Muslim. These laws also address less obvious forms of discrimination, such as workplace harassment motivated by an employee’s religion, race, sex, or other protected characteristics.

The two cases mentioned above involve female former employees of a major Wall Street asset manager. The plaintiff in the lawsuit is a Black woman who worked there from 2014 to 2020. She alleged that despite putting forth a “commitment to racial equality and inclusion” after the social justice protests of 2020, the firm had “​​serious race and sex discrimination problems of its own making.” The company, she claimed, routinely promoted white employees over Black employees with more experience and qualifications. She filed suit against the company at the beginning of 2021, alleging that she was forced out of the firm in retaliation for expressing her concerns about race discrimination. The suit was settled in the summer of 2021.
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