Articles Posted in Discrimination

divorceThe New Jersey Law Against Discrimination (NJLAD) protects employees from discrimination based on a wide range of factors, including marital status. Courts have generally held that this means employers cannot discriminate against an employee solely because that employee is unmarried, married, divorced, or separated. Last year, the New Jersey Supreme Court considered whether this provision also applies to an employee who is in the process of getting a divorce. In a 6-0 decision, the court ruled that it does apply. Smith v. Millville Rescue Squad, 139 A.3d 1 (N.J. 2016). While the court recognized that a divorce case can be chaotic and disruptive, it held that an employer cannot fire a worker if their divorce case has no direct impact on their job or their job performance.

The NJLAD prohibits discrimination on the basis of “marital status, civil union status, [or] domestic partnership status,” among many other factors. N.J. Rev. Stat. § 10:5-12(a). It does not, however, define the term “marital status.” The court’s opinion in Smith reviews other state antidiscrimination statutes, finding that the states that provide a definition of “marital status” differ considerably in the scope of their definitions. Hawaii, for example, defines it simply as “the state of being married or being single,” while Colorado’s much broader definition includes being “in the process of having a marriage or civil union dissolved or declared invalid.” Smith, 139 A.3d at 10, quoting Haw. Rev. Stat. § 378-1 and Colo. Rev. Stat. § 24-34-301(4.5).

The plaintiff in Smith worked for the defendant for about 17 years as a paramedic and emergency medical technician (EMT). He was a volunteer for the first seven years and a paid employee for the following 10 years, from 1996 to his termination in 2006. His wife also worked for the defendant during this time. According to the court’s opinion, the plaintiff “commenced an extramarital affair with [a] volunteer” under his supervision in 2005. Smith at 5. The volunteer ceased working for the defendant, but the affair reportedly continued, “leading to irreconcilable discord between plaintiff and [his wife].” Id.

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world mapA New Jersey teacher’s lawsuit for alleged national origin discrimination took an unusual turn in a recent court hearing, according to media reports. The plaintiff alleges that she was subjected to disparate treatment and retaliation because of her Palestinian heritage. Hashem v. Hunterdon Cty., et al., No. 3:15-cv-08585, 2d am. complaint (D.N.J., Oct. 19, 2016). During a hearing in early 2017, the defendants reportedly claimed that the case lacks merit because Palestine is not a “nation,” and therefore the plaintiff cannot claim “Palestinian” or “Palestinian-American” as a national origin. While this does not appear to be a prominent element of the defendants’ legal arguments, it captured media attention, and it raises important questions about how U.S. and New Jersey employment laws define “national origin.”

Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) both expressly identify national origin as a protected category for discrimination claims. See 42 U.S.C. § 2000e-2(a), N.J. Rev. Stat. § 10:5-12(a). The term “nation” can have multiple meanings, depending on the context. It can refer to a sovereign country, such as the United States, Canada, or Mexico. It can also refer to a group of people with a shared heritage, language, or culture who do not have their own distinct country, like the Indian tribes of the United States, the First Nations of Canada, and trans-national regions like Kurdistan. Palestine, with its limited international recognition and “non-member observer” status at the United Nations, would seem to fit the second definition.

Since “countries” can come into being and cease to exist, multiple courts have held that “national origin” is not limited to countries in existence at the time of a discrimination claim. In Pejic v. Hughes Helicopters, a court held that Serbians were a protected class at a time when Serbia was part of Yugoslavia. 840 F. 2d 667, 673 (9th Cir. 1988). Serbia had been independent in the early 20th century and would become independent again in the 1990s. The Pejic court cited a district court decision finding that Louisiana Acadian—a/k/a Cajun—is a national origin under Title VII. Roach v. Dresser Ind. Valve & Instrument Division, 494 F. Supp. 215, 218 (W.D. La. 1980).

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A Day Without Immigrants - Long line of protestersThe past few months have seen numerous high-profile protests around the country, both in opposition to and support of the new administration in the White House. At least two major protests have called for nationwide strikes or walkouts. In February 2017, A Day Without Immigrants called attention to the significant role of immigrants in the nation’s workforce. This month, A Day Without a Woman did the same with regard to women in the workplace. Similar protests have occurred in this country and in countries around the world for many reasons across the political spectrum. It is not clear how many people participated in the recent events, but they appeared to have a noticeable impact. They also resulted in some participants losing their jobs specifically because of their participation, which raises the question of whether, and to what extent, state and federal employment laws protect this sort of activity. A quick review of a few statutes shows that no simple answer exists. For any individual, the answer may depend on their particular employer’s policies.

Antidiscrimination laws, like Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD), protect employees from adverse actions by their employers based on specified categories, such as race, sex, and national origin. The NJLAD provides much broader protections than Title VII, but neither specifically addresses political views or activities. An employer who terminates or otherwise penalizes an employee for participating in a strike like the ones mentioned above might not violate state or federal antidiscrimination laws. A claim could hypothetically be possible if the employer’s actions indicate bias based on a protected category. The two recent strikes deal specifically with the protected categories of national origin and sex. This sort of claim would probably be a long-shot without solid evidence of an employer’s bias, but it is a possibility.

Laws protecting employees’ right to engage in labor activities are likely to be a better option, but the amount of protection they offer is also not clear. The National Labor Relations Act (NLRA) states that workers have the right to engage in “concerted activities” aimed at collective bargaining or “mutual aid or protection.” 29 U.S.C. § 157. Employers may not unreasonably interfere with employees who are exercising these rights, nor may they discriminate against employees who do so. It would be hard to make the case that events like A Day Without Immigrants have collective bargaining as their ultimate goal, but they do plausibly serve the purpose of “mutual aid or protection” for workers.
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LGBT flag mapTitle VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, national origin, and sex. Congress and the Supreme Court expanded the definition of “sex discrimination” in the 1970s and 1980s to include pregnancy discrimination and sexual harassment. The efforts to broaden Title VII’s concept of sex discrimination effectively stopped there. Neither Congress nor the federal judiciary has responded to calls to apply Title VII’s prohibition on sex discrimination to discrimination based on sexual orientation. A New York federal judge ruled against a Title VII claim for sexual orientation discrimination last year. Christiansen v. Omnicom Group, 167 F.Supp.3d 598 (S.D.N.Y. 2016). The plaintiff in that case is now asking the Second Circuit Court of Appeals in New York to reconsider its own precedent.

The Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing Title VII and other federal employment statutes, has ruled that sexual orientation is covered by Title VII’s sex discrimination provisions. While it acknowledged that the statute does not explicitly mention sexual orientation as a protected category, the EEOC held that the proper question was “whether the [employer] has relied on sex-based considerations or taken gender into account when taking the challenged employment action.” Baldwin v. Foxx, App. No. 0120133080, dec. at 6 (EEOC, Jul. 15, 2015). This ruling is largely symbolic, however, since it is not binding on any federal court.

Two decisions by the U.S. Supreme Court have expanded the concept of sex discrimination under Title VII in ways that could support an interpretation that the statute already prohibits sexual orientation discrimination. In Price Waterhouse v. Hopkins, the court held that “sex stereotyping” can support a claim of sex discrimination, such as if “an employer…acts on the basis of a belief that a woman cannot be aggressive, or that she must not be.” 490 U.S. 228, 250 (1989). The court ruled in Oncale v. Sundowner Offshore Services that sexual harassment between members of the same sex can violate Title VII, as long as the plaintiff can “prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.” 523 U.S. 75, 81 (1998).

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Lower Manhattan AerialFederal and state employment statutes protect employees from discrimination on the basis of sex and other protected traits, and they also prohibit retaliation for reporting alleged violations of these laws. Protections against retaliation also extend to workers who act as “whistleblowers” by reporting suspected financial crimes. A lawsuit in New York City combines allegations of sex discrimination with whistleblower retaliation claims under two major financial laws. The plaintiff’s complaint describes an alleged culture of unequal treatment based on gender, including unequal pay and job responsibilities. She further alleges that a supervisor harassed her to obtain information to use in insider trading, and the defendant terminated her in retaliation for reporting the matter. The lawsuit asserts causes of action under state and federal anti-discrimination laws and federal financial statutes.

The plaintiff asserts sex discrimination, harassment, and retaliation claims under a New York state law, which is similar to the New Jersey Law Against Discrimination. N.J. Rev. Stat. § 10:5-12(a). She is also alleging gender-based pay discrimination under the Equal Pay Act of 1963, 29 U.S.C. § 206(d). She has reportedly filed a claim with the Equal Employment Opportunity Commission, and she will add claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), once the administrative process is complete.

The plaintiff is also claiming violations of the whistleblower protection provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 15 U.S.C. § 78u- 6(h)(1); and the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. Employers that are subject to these laws cannot terminate or otherwise retaliate against an employee for reporting alleged financial fraud or impropriety, for participating in an investigation of alleged financial impropriety, or for disclosing information to a government agency in the manner required by law. Both statutes allow private causes of action by aggrieved employees.

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DNAFederal law protects employees against discrimination based on a wide and expanding range of factors. Congress enacted the Genetic Information Non-Discrimination Act (GINA), 42 U.S.C. § 2000ff et seq., in 2008 to protect employee privacy with regard to genetic information and to prohibit discrimination on the basis of such information. The Equal Employment Opportunity Commission (EEOC) recently announced that it had settled a lawsuit against an employer that allegedly violated GINA by requesting family medical history from employees and job applicants. EEOC v. BNV Home Care Agency, Inc., No. 1:14-cv-05441, complaint (E.D.N.Y., Sep. 17, 2014). In a consent decree filed in October 2016, the employer agreed to pay $125,000 in damages, along with other injunctive and equitable relief.

GINA defines “genetic information” broadly to include the results of an individual’s genetic tests and those of the individual’s family members, as well as “the manifestation of a disease or disorder” in members of that individual’s family. 42 U.S.C. § 2000ff(4)(A). “Family members” include first-degree relatives, including “parents, siblings, and children,” through fourth-degree relatives, including great-great-grandparents and -grandchildren. Id. at § 2000ff(3), 29 C.F.R. § 1635.3(a)(2). Genetic testing includes screening for various genetic abnormalities or genetic variants indicating a predisposition to certain diseases, such as “the BRCA1 or BRCA2 variant evidencing a predisposition to breast cancer.” 29 C.F.R. § 1635.2(f)(2)(i).

Employers may not discriminate in hiring, firing, compensation, or other features of employment on the basis of a person’s genetic information. 42 U.S.C. § 2000ff-1(a). For example, an employer violates GINA if they refuse to hire someone based on genetic tests showing a predisposition to cancer. Employers are also prohibited from “request[ing], requir[ing], or purchas[ing] genetic information” on an employee or an employee’s family member(s), with some exceptions. Id. at § 2000ff-1(b). The EEOC and aggrieved individuals may bring claims for alleged violations of GINA in the manner prescribed under Title VII of the Civil Rights Act of 1964. Id. at §§ 2000ff-6, 2000e-5(f).

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scales of justiceA wrongful termination lawsuit in a New Jersey state court resulted in a jury verdict awarding the plaintiff $8.45 million in September 2016. This amount consisted of compensatory damages for emotional distress of $2.45 million, as well as $6 million in punitive damages. The plaintiff alleged that her employer, a government agency in Hudson County, New Jersey, terminated her after she sought treatment for depression, despite the fact that two mental health professionals had stated that she was fit to return to work. The New Jersey Civil Service Commission (CSC) ruled that the county had wrongfully terminated her and awarded her back pay. Matter of Malta-Roman, Hudson Cty. Dept. of Family Svcs., Docket No. 2013-2883, decision (N.J. Civil Svc. Comm., May 7, 2015). The plaintiff also filed a civil lawsuit, which resulted in the jury verdict. Malta-Roman v. Hudson Cty., No. L-001361-14, complaint (N.J. Super. Ct., Hudson Co., Mar. 24, 2014).

This case highlights two tracks that employment law claims can take. The plaintiff brought a claim before the New Jersey Office of Administrative Law (OAL) and the CSC. Filing an administrative claim is a prerequisite for many employment law claims. A person claiming employment discrimination, for example, must first file a complaint with the federal Equal Employment Opportunity Commission (EEOC) or a comparable state or local agency. The agency may decide to pursue the matter on the claimant’s behalf. If it does not, it may issue a “right to sue” letter, which allows the claimant to file a civil lawsuit. Since the plaintiff in Malta-Roman was a county employee, she had to use certain administrative procedures before going to court.

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flu moleculesControversies over vaccinations can intersect with employment law when employers require them for their employees. Anti-discrimination statutes like the New Jersey Law Against Discrimination (NJLAD) may offer some protection for employees who decline employer-mandated vaccinations for certain reasons. The New Jersey Appellate Division recently considered whether a plaintiff could claim religious discrimination under the NJLAD based on an employer policy that allowed medical and religious exemptions for the annual flu shot but not secular exemptions. Brown v. Our Lady of Lourdes Medical Ctr., No. A-4594-14T2, slip op. (N.J. App., Oct. 3, 2016). While the court did not accept the claim, it left the door open and offered useful guidance for how NJLAD religious discrimination claims might work in this type of situation.

Some people cannot get vaccinations for medical reasons, such as allergies or immune system disorders, while others decline vaccinations for religious reasons. Still others may have objections to a vaccination requirement that are neither religious nor medical. The NJLAD prohibits discrimination in employment on the basis of numerous factors, including “creed.” N.J. Rev. Stat. § 10:5-12(a). Religious discrimination claims under the NJLAD are possible for disparate treatment related to religious beliefs, but it remains unclear how this might apply to flu shot refusals.

In 2014, the Appellate Division found that an employment policy that only allowed religious exemptions to a flu shot requirement violated the First Amendment. Valent v. Bd. of Review, Dept. of Labor, 91 A.3d 644 (N.J. App. 2014). While the case dealt with an adverse employment action, the decision did not specifically cite the NJLAD. The plaintiff worked in a hospital that allowed religious exemptions to the flu shot requirement, provided the employee wore a surgical mask when interacting with patients. The plaintiff offered to do the same, but the hospital declined her request for an exemption because her objection to the flu shot was not based on a religious belief. It then fired her for violating the flu shot policy. The court found that the policy violated the plaintiff’s “freedom of expression” by “improperly endorsing the employer’s religion-based exemption…and rejecting the secular choice proffered by [the plaintiff].” Id.

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runnerThe Equal Employment Opportunity Commission (EEOC) recently issued two new Final Rules regarding employer wellness programs. 81 Fed. Reg. 31125, 81 Fed. Reg. 31143 (May 17, 2016). Federal law defines a “wellness program” as any program offered to employees that is “designed to promote health or prevent disease.” 42 U.S.C. § 300gg(j)(1)(A). The new rules address compliance under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; and Title II of the Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff et seq. In addition to prohibiting employment discrimination, both statutes include provisions for the protection of employees’ medical information. Concerns over the new rules led AARP, an advocacy group for older Americans, to file a lawsuit seeking an injunction against the EEOC. AARP v. EEOC, No. 1:16-cv-02113, complaint (D.D.C., Oct. 24, 2016).

The EEOC notes that some wellness programs offer incentives to employees to encourage participation, from discounts on health insurance premiums to cash or other prizes. Other programs offer similar incentives for specific outcomes like weight loss. The ADA prohibits employment discrimination based on disability, including in the availability of employment-related fringe benefits. The statute does not allow employers to require medical examinations or make inquiries about disabilities if they are not directly related to the employee’s job duties, but it allows an exception for “voluntary” medical examinations in connection with a wellness program. 42 U.S.C. § 12112(d)(4).

GINA prohibits discrimination based on genetic information and places strict limits on employers’ ability to collect medical history and genetic information from employees. Employers may collect employees’ genetic information in connection with a voluntary wellness program, with limits on who may access that information, how employers may use that information, and which incentives or inducements employers may offer to encourage participation in the program. 29 C.F.R. § 1635.8(b)(2).

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ADHD chartThe Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., along with various state and city laws, protects employees with certain disabilities from discrimination and requires employers to make “reasonable accommodations” for qualifying employees who need them to perform the essential elements of their jobs. Conditions that can qualify for ADA protection range from short-term physical injuries to chronic conditions, including mental health conditions. A lawsuit recently filed in New York City alleges that the plaintiff’s employer fired her in violation of state and city anti-discrimination laws because she was diagnosed with attention deficit hyperactivity disorder (ADHD). Thiery v. Slover, et al., No. 156310/2016, complaint (N.Y. Sup. Ct., N.Y. Co., Jul. 28, 2016).

The National Institute of Mental Health (NIMH) defines ADHD as a mental health disorder “marked by an ongoing pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development.” ADHD is commonly associated with children but is also present in adults. The three main features of ADHD, according to NIMH, are inattention, hyperactivity, and impulsivity. These traits are present to some extent in almost everyone, but in adults diagnosed with ADHD, they are present to such a degree that they can interfere with daily functioning.

A “disability” under the ADA includes a condition “that substantially limits one or more major life activities,” a “record” of this type of condition, and the perception of being impaired. 42 U.S.C. § 12102(1). Numerous courts have recognized that ADHD can constitute a “disability” within the meaning of the ADA, although the difficulty is in proving that the condition rises to that level of impairment. In one case, for example, a court found that the plaintiff had established a record “of a substantially limiting impairment,” but she had not adequately shown that her recent impairment was directly attributable to her ADHD diagnosis, nor that her employer “regarded her as having such an impairment.” Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 502 (7th Cir. 1998).

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