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Federal employment anti-discrimination law identifies five protected categories: race, color, religion, national origin, and sex. Court decisions have added nuance to these categories, particularly with regard to sex discrimination. Most courts, in interpreting federal law, have been unwilling to extend the law’s prohibition against discrimination on the basis of sex to include factors like sexual orientation or gender identity. New Jersey and other states have amended their own anti-discrimination laws to include specific protections against these forms of discrimination in employment, housing, and other areas. The U.S. House of Representatives passed H.R.5, known as the Equality Act, in May 2019. The bill would amend federal law to match anti-discrimination laws in states like New Jersey.

The New Jersey Law Against Discrimination (NJLAD) includes “affectional or sexual orientation,” “sex,” and “gender identity or expression” in its list of protected categories. N.J. Rev. Stat. § 10:5-12(a). The law defines “affectional or sexual orientation” as a person’s actual, perceived, or presumed orientation with regard to “affectional, emotional or physical attraction or behavior” towards members of the opposite gender, one’s own gender, or either gender. Id. at § 10:5-5(hh) – (kk). “Gender identity or expression” refers to a person’s actual or perceived identity or mode of expression that might not be “stereotypically associated with a person’s assigned sex at birth.” Id. at § 10:5-5(rr). This may include people who identify with a different gender than the one assigned at birth, or people who identify as non-binary.

Title VII of the Civil Rights Act of 1964 does not include protections against discrimination based on sexual orientation or gender identity or expression, at least officially. The Equal Employment Opportunity Commission has taken the position that the statute’s prohibition on sex discrimination includes prohibitions on both additional forms of discrimination. The Seventh Circuit Court of Appeals reached the same conclusion regarding sexual orientation in 2017, followed by the Second Circuit in 2018. The U.S. Supreme Court has agreed to hear the appeal of the Second Circuit’s ruling, alongside the appeal in an Eleventh Circuit case that reached the opposite conclusion. It will also hear the appeal of a Sixth Circuit decision applying Title VII to a gender identity discrimination claim.
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The Resnick Law Group recently represented a teacher in a disability discrimination case at the New Jersey Superior Court, Appellate Division, and obtained a reversal of a lower court order dismissing the case. The teacher alleges that her employer’s failure to provide a reasonable accommodation for her disability caused her to suffer injury when she collapsed at work. One of the questions before the court involved whether she could assert a cause of action for disability discrimination under the New Jersey Law Against Discrimination (NJLAD) without evidence of an “adverse employment action.” The court held that she could.

The NJLAD prohibits discrimination on the basis of actual, perceived, or past disabilities. N.J. Rev. Stat. § 10:5-12(a), N.J.A.C. § 13:13-1.3. This includes a requirement that employers provide “reasonable accommodations” to employees with disabilities, which would allow them to perform the functions of their jobs. The plaintiff taught science at a middle school in the defendant’s school district. She had Type 1 diabetes, which means that she must eat on a rather strict schedule to prevent her blood sugar from getting too low. The defendant denied requests to modify her class schedule so she could always have an early lunch period. She alleges that, as a result, she suffered a hypoglycemic episode in front of her students. She fell and hit her face and head on a table and the floor. After a successful claim for workers’ compensation, she filed suit under the NJLAD.

The trial court dismissed the plaintiff’s NJLAD failure to accommodate claim, finding that she had failed to establish an adverse employment action. The Appellate Division identified three questions it had to address:
1. Does a plaintiff alleging failure to accommodate a disability have to establish an adverse employment action in order to avoid summary judgment dismissal?
2. If not, is a bodily injury claim brought under the NJLAD barred by the Workers’ Compensation Act (WCA)?
3. If the case were to proceed, should any recovery be offset by workers’ compensation payments?
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The Resnick Law Group recently won a notable victory for New Jersey employees related to a failure to accommodate an employee’s disability. This post discusses the legal background of the case, while a subsequent post will cover the court’s opinion. The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of disability, among many other factors. This includes terminating or refusing to hire a person because they have a disability, Under rules found in the New Jersey Administrative Code, disability discrimination also includes refusing to provide a reasonable accommodation to an employee with a disability. One of our attorneys recently argued a case before the New Jersey Superior Court, Appellate Division, on behalf of an employee who was denied an accommodation for a chronic illness. After the defendant allegedly denied the employee’s request for an accommodation, she collapsed at work and suffered injuries. The appeal involved questions of whether a failure to accommodate claim under the NJLAD could proceed without evidence of an “adverse employment action,” and whether state workers’ compensation law barred her bodily injury claims. In early June 2019, the Appellate Division ruled that the employee’s lawsuit could move forward.

The term “disability” has a very broad definition under the NJLAD. In additional to various injuries and congenital conditions, it includes “physical…infirmity,…which is caused by…illness.” N.J. Rev. Stat. § 10:5-5(q). State regulations adopt this definition, but also add the perception or belief that a person has a disability, regardless of whether they actually do, and a history of “ha[ving] been a person with a disability at any time.” N.J.A.C. § 13:13-1.3.

The statute requires employers to “make a reasonable accommodation to the limitations of an employee…who is a person with a disability.” Id. at § 13:13-2.5(b). The employee in the Appellate Division case referenced above has Type 1 diabetes and needs accommodations in the daily work schedule to manage their blood sugar. State regulations include “modified work schedules” among the accommodations employers must consider for employees with disabilities. Id. An employer can avoid the obligation to provide a reasonable accommodation only if they “can demonstrate that [it] would impose an undue hardship on the operation of its business.” Id.
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The New Jersey Superior Court, Appellate Division has revived a lawsuit alleging employment discrimination on the basis of gender under state and federal laws. The plaintiffs allege that a set of “personal appearance standards” (PAS) maintained by their employer, an Atlantic City casino, discriminated on the basis of gender. They further claim that the defendant enforced the PAS in a harassing manner. The case has followed an unusual path. In 2015, the Appellate Division partially reversed a Law Division order granting summary judgment to the defendant. The Law Division proceeded to grant summary judgment to the defendant again in July 2016. The Appellate Division reversed the Law Division’s order in May 2019. It found that the Law Division was bound by the 2015 ruling and that the court erred by dismissing the case on remand. The appellate court remanded the case once more, ruling that “after a decade of motion practice and appeals, plaintiffs are entitled to their day in court.”

State and federal employment statutes in New Jersey prohibit employment discrimination on the basis of sex and gender. Court decisions and statutes have defined multiple forms of unlawful sex discrimination. These include “hostile work environment,” a form of sexual harassment in which pervasive and unwelcome sexual remarks or behavior render an employee unable to perform their job duties. Discrimination on the basis of “sex stereotyping,” in which an employer takes an adverse action against an employee because they do not fit certain stereotypes about members of their sex, is also unlawful. In some situations, employees can establish violations of anti-discrimination laws based on the disparate impact of a policy or practice, even if the employer did not intend to discriminate on the basis of sex or another factor.

The plaintiffs in the above-described lawsuit worked as “costumed beverage servers.” They had to agree to the PAS as a condition of employment. The PAS mandated specific features like “a natural hourglass shape” for women and “a natural ‘V’ shape with broad shoulders and a slim waist” for men. The defendant reportedly modified the PAS in February 2005 in order “to elucidate the ‘weight proportioned to height’ standard.” The revised PAS stated that employees’ weight could not increase by more than seven percent, as compared to their weight when they were hired. Weigh-ins occurred at seemingly random times. These changes formed the basis of many of the complaints leading to the lawsuit.
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Employment in New Jersey is considered to be “at will,” meaning that an employer can terminate an employee for any reason, or no reason at all, as long as they do not violate any employment statutes or contractual provisions. Some government employees have an additional layer of protection under the Due Process Clause of the Fourteenth Amendment, or the Fifth Amendment in the case of federal government employees. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, ruled on a Due Process claim against Passaic County and several county officials in early May 2019. The ruling, along with several earlier Third Circuit decisions, offer some ideas about how a civil service employee could assert a constitutional claim based on deprivation of a property interest.

The Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment prohibit the government, its agencies, and its officials from depriving people “of life, liberty, or property, without due process of law.” An employee must establish that they have a property interest in some aspect of their employment, and that their employer wrongfully deprived them of it. A 1972 decision by the U.S. Supreme Court, Bd. of Regents v. Roth, found that establishing a property interest requires “a legitimate claim of entitlement,” rather than merely “a unilateral expectation.”

The Third Circuit cited Roth in a 2006 decision holding that, in an at-will employment state, a person’s job is not inherently a property interest protected by the Constitution. The court ruled that the question of entitlement to a benefit, including retaining one’s job, is a matter of state law. Since the case originated in an at-will employment state, the plaintiff did not have a protected property interest in their job. The court also found that an employee could still demonstrate the deprivation of a constitutionally-protected liberty interest, based on the manner in which their employer terminated them or took some other adverse action. That particular case involved a claim of defamation against the employer. The court left open the possibility that various claims in tort or other law could support a Due Process claim.
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The New Jersey Law Against Discrimination (NJLAD) bars employers from discriminating against their employees on the basis of factors like age, race, sex, and disability. This includes terminating an employee, refusing to hire a job applicant, demoting or declining to promote an employee, and many other decisions involving employment benefits and conditions. The New Jersey Appellate Division recently ruled (the “Opinion”) that a woman’s claims for age and disability discrimination can move forward, finding that she had raised sufficient questions of fact about the defendant’s claimed reasons for terminating her employment.

The NJLAD prohibits discrimination on the basis of numerous factors, including age and disability. In the Opinion, the court reviewed the process for a claim under the NJLAD. A plaintiff must establish four elements: (1) they are part of a protected class and (2) are qualified for the position they held; and (3) the employer took an adverse employment action and (4) replaced the plaintiff with someone who is not part of the protected class. The burden of proof then shifts to the defendant to “articulate a legitimate, nondiscriminatory reason” for the adverse action. Finally, the plaintiff must demonstrate that the defendant’s alleged reason was pretextual, meaning that it was merely cover for a discriminatory purpose.

Reportedly, the defendant terminated the plaintiff shortly after she underwent gallbladder surgery. She was fifty years old at the time and had recently received “a ‘strong performance’ evaluation” from the defendant. She alleged that the defendant replaced her with “a person nearly half her age.” The reason given by the defendant for the termination involved a claim that she “attempted to defraud [the defendant] by failing to take steps to remove her ex-husband from the company’s health insurance plan.”
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When an employee begins working for an employer, they are often required to sign an employment agreement that establishes numerous features of the employer-employee relationship. Most provisions involve standard matters like job expectations, wages, and termination of the employment relationship. Employment agreements may also include provisions for nondisclosure of various types of information, as well as waivers of certain rights. When employers and employees enter into settlement agreements to resolve disputes, an employer may seek a nondisclosure clause as well. Provisions like these may hinder individuals’ ability to assert their rights under employment statutes like the New Jersey Law Against Discrimination (NJLAD). At least partly in response to increased attention on sexual harassment in the workplace, the New Jersey Legislature enacted a bill in January 2019 that amends the NJLAD to prohibit enforcement of certain nondisclosure agreements, as well as waivers of rights under the NJLAD or similar statutes.

The NJLAD prohibits employers from discriminating against employees on the basis of race, religion, sex, age, sexual orientation, gender identity or expression, and many other factors. Courts have held that prohibitions on sex discrimination in the NJLAD and other laws cover sexual harassment, as well as harassment based on other protected factors. Unlawful harassment generally includes two scenarios: (1) acquiescence to or tolerance of harassing behavior, including sexual advances, is made a condition of employment; and (2) pervasive and unwelcome harassing behavior creates a hostile work environment that interferes with an individual’s ability to perform their job duties.

The #MeToo movement has allowed people all over the country to come forward with their own experiences, when many of them might have been afraid to do so before. Nondisclosure agreements (NDAs) in discrimination and harassment cases may prevent people with similar experiences from sharing their stories. Last year, California and New York enacted limits on NDAs in situations involving alleged sexual harassment. California now prohibits NDAs that purport to “prevent[] the disclosure of factual information related to a” lawsuit or administrative complaint alleging sexual harassment. New York now has similar provisions in its laws barring NDAs in settlements and other resolutions of sexual harassment disputes.
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New Jersey is among the more than half of all U.S. states that allows the possession and use of small amounts of marijuana for medical purposes, under the supervision of a physician. Recreational use is still prohibited by state law, and federal law still prohibits possession and use for any purpose. Conflicts among various laws have led to much confusion. The New Jersey Superior Court, Appellate Division recently ruled on how this state’s marijuana laws affect employment discrimination laws. The court reversed the dismissal of a lawsuit brought by an individual whose cancer treatment plan included a medical marijuana prescription. The plaintiff alleged that his former employer fired him in violation of state laws prohibiting disability discrimination. Published Decision (the “Decision”).

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of factors like race, religion, sex, and disability. N.J. Rev. Stat. § 10:5-12(a). It defines the term “disability” to include “physical disability [or] infirmity…which is caused by…illness.” Id. at § 10:5-5(q). This includes many the physical and other symptoms caused by many forms of cancer.

A plaintiff alleging disability discrimination under the NJLAD must prove four elements:
1. The employee had a disability, or the employer perceived the employee as having a disability;
2. The employee was still qualified to perform, and was still performing, “the essential functions of the job”;
3. The employee suffered “an adverse employment action” because of the actual or perceived disability; and
4. The employer “sought a similarly qualified individual” to replace the employee.
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The Fair Labor Standards Act (FLSA) requires employers in New Jersey and around the country to pay overtime to non-exempt workers when they work more than forty hours in a week. Employers are not obligated to pay overtime to individuals who work “in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) has developed a definition of executive, administrative, and professional (EAP) jobs. It includes a requirement that a worker receive a minimum salary amount, currently set at $455 per week, or $23,660 per year. In 2016, the WHD sought to increase this minimum threshold, but a federal judge struck that rule down. A new proposal from the WHD, published in March 2019, would increase the minimum amount, but not nearly as much as the 2016 proposed rule. 84 Fed. Reg. 10900 (Mar. 22, 2019).

Employers must pay overtime to non-exempt workers at a rate of at least one-and-a half times their regular hourly rate. See 29 U.S.C. § 207(a)(1). The FLSA itself does not define the terms “executive,” “administrative,” or “professional.” The WHD has established guidelines for determining when an individual could legitimately be deemed to hold an EAP position that is exempt from the FLSA’s overtime rule. The guidelines are intended to prevent employers from labeling a job as an “executive” position for the sole purpose of avoiding overtime. The regulations specify that job titles are “insufficient to establish the exempt status of an employee.” 29 C.F.R. § 541.2. Among other criteria, a position must have a salary of at least $455 per week. Id. at §§ 541.100, 541.200, 541.300. The WHD set this minimum salary rate in 2004. 69 Fed. Reg. 22121 (Apr. 23, 2004).

The WHD sought to increase the minimum salary rate for EAP employees to $913 per week, or $47,476 per year, in 2016. 81 Fed. Reg. 32391 (May 23, 2016). This would be slightly more than double the existing rate. The previous increase in 2004 more than tripled the then-existing rate of $155 per week, which had been in place since 1975. 69 Fed. Reg. 22122. A group of state governments and business organizations filed suit against the DOL, which was part of the Obama administration at the time, seeking to block the new rule. A federal district court granted a preliminary injunction in Nevada, et al v. U.S. Dept. of Labor, et al, 218 F.Supp.3d 520 (E.D. Tex. 2016). In August 2017, the court granted summary judgment to the defendants, finding the rule invalid.
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Federal and state law require New Jersey employers to pay a minimum wage to non-exempt employees, and to compensate them for overtime at a rate of time-and-a-half. Employers who fail to do so may be liable to their employees for back wages and other damages. They may also be liable for civil penalties to federal or state regulatory agencies. The U.S. Department of Labor (DOL) announced late last year that it had recovered more than $350,000 in damages from a New Jersey employer. The DOL’s Wage and Hour Division (WHD) reportedly found that the company paid its employees a flat salary, and that this amount was less than minimum wage when compared to the actual number of hours worked.

Under the federal Fair Labor Standards Act (FLSA), the minimum wage is currently $7.25 per hour nationwide. 29 U.S.C. § 206(a)(1)(C). Non-exempt employees are entitled to compensation of at least “one and one-half times the regular rate” for time worked over forty hours in a week. Id. at § 207(a)(1). New Jersey has the same rule regarding overtime. As of January 1, 2019, the minimum wage in New Jersey is $8.85 per hour. N.J. Rev. Stat. § 34:11-56a4, N.J.A.C. § 12:56-3.1.

Employers commonly find themselves in violation of minimum wage and/or overtime laws when they require employees to perform job-related duties before they clock in, or after they clock out. For example, an employer might require workers to change into and out of uniform while they are not “on the clock.” The employees do not get paid for the time spent performing those tasks, which are considered to be a requirement of their job.
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