Articles Posted in Discrimination

Federal and New Jersey employment laws protect employees and job applicants from disability discrimination. Disability discrimination encompasses refusing to hire or firing someone because of a disability, providing different pay or other forms of compensation due to a disability, or refusing to provide reasonable accommodations that would enable an individual with a disability to perform their job duties. The U.S. Supreme Court recently issued a ruling in a case alleging disability discrimination in compensation, specifically employer-sponsored health insurance, under the Americans with Disabilities Act (ADA) of 1990. The allegedly discriminatory act did not affect the plaintiff until after she had retired. The court ruled that she was no longer an “employee” as defined by the ADA and did not have standing to file a lawsuit.

The ADA states that employers may not “discriminate against a qualified individual on the basis of disability in regard to… employee compensation” and other matters. The statute defines a “qualified individual” as someone who can “perform the essential functions” of a job the person “holds or desires,” either without assistance or with reasonable accommodations. The meaning of the words “holds or desires” was at the center of the Supreme Court case.

The plaintiff in Stanley v. City of Sanford began working as a firefighter for a city fire department in 1999. She was diagnosed with a chronic illness in 2016, and as a result had to retire from the fire department in 2018 after approximately nineteen years on the job.
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New Jersey has allowed the use of cannabis for at least some reasons for the last fifteen years. Still, the relationship between New Jersey employment law and cannabis law remains uncertain. Employees in New Jersey who use cannabis for medical purposes with a doctor’s prescription may have rights under state laws prohibiting disability discrimination. A much newer law allows recreational use of small amounts of cannabis. This law specifically states that employers may not discriminate against employees based on legal cannabis use outside of work, provided they are not under the influence of cannabis while at work. A job applicant filed suit against a major retailer after it rescinded a job offer because a drug test was positive for cannabis. The Third Circuit Court of Appeals ruled in late 2024 that the recreational cannabis law does not give job applicants or employees the right to file a private cause of action for alleged discrimination. This leaves employees with legal rights against discrimination but no clear means of enforcing those rights.

The New Jersey medical cannabis law took effect in 2009. It originally stated that employers did not have to accommodate medical cannabis use. Subsequent amendments to that section of the law have removed that language. Currently, the medical cannabis law does not contain any explicit employment protections. A 2020 ruling by the New Jersey Supreme Court, however, held that the New Jersey Law Against Discrimination’s prohibition on disability discrimination applies to medical cannabis use outside of work. The case involved an employee who lost his job after his employer discovered he used cannabis with a prescription to treat the symptoms of cancer.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in 2021. It states that an employer may not refuse to hire or fire someone, nor may it discriminate in other ways because a person does or does not use cannabis for lawful recreational purposes. It also states that employers may not take adverse actions solely based on “the presence of cannabinoid metabolites” in a drug test resulting from lawful cannabis use. Employers may, however, require drug testing to ensure employees are not working under the influence. The statute does not state that employees may file suit for alleged violations, although some courts have allowed discrimination claims to proceed.
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Discrimination based on gender identity or gender expression has received a large amount of attention, partly due to advances made by advocates for transgender and gender non-conforming individuals in the workplace and elsewhere. It is also due to pushback against those advances. New Jersey employment law specifically bars discrimination based on gender identity and gender expression, while federal law treats it as a form of sex discrimination. The use of restrooms in the workplace has been a topic of particular controversy in recent weeks due to a dispute involving the first openly transgender woman elected to Congress. New Jersey law generally states that employers must allow bathroom use based on individual gender identity.

The Occupational Safety and Health Administration (OSHA) requires “lavatories…in all places of employment,” with only a few exceptions. Employers may have restrooms separated by sex or unisex restrooms. OSHA regulations are primarily concerned with sanitation and employee health, although the agency offers guidance on gender identity issues.

The New Jersey Law Against Discrimination (NJLAD) states that employers may not discriminate against employees or job applicants “because of [their]…gender identity or expression.” The New Jersey Attorney General’s Division on Civil Rights interprets this provision to include “us[ing] a bathroom or changing room consistent with [an individual’s] gender identity or expression.” The state government’s policy on individuals who are transitioning their gender identity or expression includes a provision on restroom access, which requires state employers to provide “the same level of restroom access available to non-transgender individuals.”
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