Discrimination

September 10, 2014

City Ordinances Limit Employers’ Ability to Refuse to Hire Applicants Based on Criminal History

As many as one in four Americans has a criminal record that could turn up during a job search. Lack of employment opportunities is a substantial factor in the difficulty people with criminal history face, including an estimated recidivism rate of 70 percent. We, as a society, are nowhere near consensus on whether the primary purpose of our criminal justice system is punishment or rehabilitation. What seems clear, however, is that barriers preventing people with criminal records from getting jobs, particularly when an applicant’s criminal record has no rational relationship to the job in question, make reentry into society all the more difficult. Cities and states around the country, including two New Jersey cities, have enacted laws limiting when employers may ask about or consider criminal history.

The “Ban the Box” campaign promotes laws that prohibit employers from asking about criminal history during the initial phase of the job application process. The campaign’s name refers to the checkbox for criminal history found on many job applications. Federal anti-discrimination law does not expressly prohibit discrimination based on criminal history, and consideration of prior convictions might be necessary for certain jobs. The Equal Employment Opportunity Commission (EEOC) has held, however, that use of criminal history in employment decisions may violate Title VII of the Civil Rights Act of 1964 in other ways, such as if it results in disparate treatment of employees or job applicants based on race or other protected categories.

The first statewide law prohibiting employment discrimination based on criminal history was adopted in Hawaii. An employer may ask about criminal history if it “bears a rational relationship to the duties and responsibilities of the position,” but only after extending a “conditional offer of employment.” HI Rev. Stat. § 378-2.5. As of May 2014, 11 more states have enacted similar laws. At least 66 local jurisdictions have also enacted ban-the-box ordinances, including New Jersey’s own Newark and Atlantic City.
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July 22, 2014

Wrongful Termination May Expose Employers to Defamation Claims

by Resnick Law Group, P.C.

Federal, state, and local employment statutes prohibit employers from discriminating based on certain protected categories, such as race, sex, or religion. In some situations, an employer may want to fire an employee, but lacks a non-discriminatory basis for doing so. If that employer makes a false statement regarding the employee as a pretext or justification for termination, the employer could be liable for defamation if the statement was made to the public. Defamation law allows an individual to recover damages for false statements, made with knowledge of their falsity, that cause actual harm.

In both New Jersey and New York, the elements of a defamation claim are (1) a false statement, (2) unprivileged or unauthorized publication to a third party, (3) negligence with regard to the statement’s falsity, and (4) actual harm to the subject of the statement. Lee v. Bankers Trust Co., 166 F.3d 540, 546 (2d. Cir. 1999); Dillon v. City of New York, 261 A.2d 34, 38 (NY App. 1999). “Publication” may include written publication, known as libel, or a verbal statement to one or more people other than the subject, known as slander.

New Jersey, along with many other states, follows the “single publication” rule, meaning that a cause of action for defamation begins to accrue when the statement is first published. Barres v. Holt, Rinehart and Winston, Inc., 74 N.J. 461, 462-63 (1977). This rule generally applies to statements published on the internet. Churchill v. New Jersey, 876 A.2d 311, 319 (NJ App. 2005).
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July 15, 2014

Retail Chain Allegedly Fired Gay Male Employees to Cut Costs, According to Lawsuit

by Resnick Law Group, P.C.

A man’s lawsuit against his former employer alleges that the company created multiple pretexts ito justify firing him, and that the company discriminated against him because he is homosexual. Housh v. Home Depot USA, Inc., et al, No. 30-2013-00678843, complaint (Cal. Super. Ct., Orange Co., Oct. 1, 2013). The plaintiff further alleges that the company has sought out pretexts for firing other employees who, like the plaintiff, are older gay men. He claims that the company is acting out of concern for supposedly increased costs associated with such employees. The lawsuit asserts a total of 17 causes of action under common law and state statutes, including age discrimination, gender discrimination, wrongful termination, sexual harassment, and retaliation.

The plaintiff began working for the defendant, Home Depot, in 1987, and worked continuously for the company at several California locations for more than 25 years. He states in his complaint that management used a “Value Wheel” to protect employees from discrimination and other improper treatment. Id. at 5. He alleges that the “Value Wheel” and assorted representations made by management in connection with it constituted promises made to induce him and other employees to continue working for the company, including non-discrimination, merit-based pay and promotion, adequate benefits to prepare for retirement, and no retaliation for reporting “illegal and/or improper conduct.” Id. at 5-6. The company largely followed these promises, the plaintiff claims, until the 2008 recession.

The real estate recession that began in 2008, according to the plaintiff, had a serious impact on the company’s profits and stock price. The plaintiff alleges that the company “set a quota of employees that had to be terminated.” Id. at 8. Managers were allegedly instructed to target employees in three categories for termination: “Older/Higher Paid,” “Gay Males,” and “employees who disclosed improper or illegal conduct.” Id. The company’s management allegedly believed that benefits for gay male employees were more expensive “because of the HIV and AIDS virus.” Id. The plaintiff also claims that the company believed that the passage of California’s Domestic Partnership Equality Act in 2011, which requires employers to provide certain forms of coverage for domestic partners, would be financially damaging.
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July 8, 2014

Plaintiff in Employment Discrimination Lawsuit Alleges that Employer Fired Him Because of Religion

by Resnick Law Group, P.C.

A former marketing director for a wireless telecommunications company has filed suit against his former employer for religious discrimination. Mindrup v. Goodman Networks, Inc., No. 4:14-cv-00157, complaint (E.D. Tex., Mar. 20, 2014). He alleges that, after working for the company for years, he was terminated one day after he refused to comply with instructions from a superior that, he claims, violated his sincerely-held religious beliefs. Because the plaintiff alleges that the violations were intentional, he is seeking punitive damages along with lost wages and other damages.

The plaintiff worked for the defendant as Director of Marketing Communications. Part of his job was to send out a daily email message to employees entitled “The Morning Coffee,” which he states that he did for about six years. He alleges that one of the company’s co-founders, who was also a corporate director and officer, instructed him on March 14, 2012 to begin adding Bible quotes to “The Morning Coffee” the following day. The plaintiff, who is a practicing Buddhist, claims that he believed this would not only go against his own religious beliefs, but might offend other employees.

The following day, the plaintiff claims that he emailed the co-founder to decline the instruction, adding that he had “always taken great care to avoid any quotes that would offend others” or his own beliefs. Id. at 4. The co-founder allegedly responded with an email saying “I respect your beliefs.” Id. The plaintiff then claims that the co-founder fired him “in an after-hours telephone call” the next day, March 16, “without any warning or progressive discipline,” because of his refusal to put Bible verses in the daily email message. Id.
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July 7, 2014

Teacher Sues New York School, Alleging Discrimination and Firing Based on Age, Marital Status, Sex, and Sexual Orientation

by Resnick Law Group, P.C.

A former coach and physical education teacher has filed suit against his former employer, alleging that he faced unlawful discrimination and was fired in retaliation for speaking out. Kenney v. Trinity School, et al, No. 161600/2013, complaint (NY Sup. Ct., NY Co., Dec. 17, 2013). This case might seem unusual because the plaintiff is a married, heterosexual male with children who alleges that his supervisor, an unmarried homosexual female, discriminated against him based on sexual orientation and marital status. He is asserting causes of action under the New York State Human Rights Law (NYSHRL), NY Exec. L. § 296, and the New York City Human Rights Law (NYCHRL), NYC Admin. Code § 8-107.

According to his complaint, the plaintiff was hired in 1997 to work on a contract basis at the Trinity School in Manhattan. His contract was renewed annually for sixteen years. He claims that he had a good employment record and generally got along with administrators, teachers, and staff at the school. This changed, he claims, when “a homosexual, single, female administrator with no children” became his supervisor. Kenney, complaint at 3. The supervisor allegedly discriminated against him because he is a fifty year-old married man with children.

While the plaintiff had previously received positive reviews on his work, he claims that the new supervisor routinely “berated and reprimanded” him. Id. She also allegedly gave preferential treatment to a younger, unmarried female teacher who did not have children, as well as other similarly-situated employees. The plaintiff claims that the supervisor assigned him work duties that exceeded the requirements of his contract, and refused to take his family responsibilities into account in planning for school activities. He claims that younger, unmarried teachers were not required to perform additional duties.
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May 21, 2014

Investigating Employees’ Work Eligibility May Violate Anti-Discrimination Laws, Warns Justice Department

by Resnick Law Group, P.C.

Federal immigration law requires employers to verify the employment eligibility of their workers. It also, however, prohibits them from discriminating on the basis of national origin or citizenship status, provided that the employee is not an undocumented immigrant. The Department of Justice (DOJ), through its Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, recently offered guidance for employers regarding internal audits or other inquiries into employees’ work eligibility beyond that required by law. Any sort of employment eligibility verification policies applied unevenly or inconsistently could lead to liability under federal immigration law.

Employers are prohibited from employing unauthorized workers, and are required to verify that all employees and new hires are authorized to work in the United States. 8 U.S.C. § 1324a. Knowingly hiring or employing an unauthorized worker, which could be an undocumented immigrant or someone with a visa that does not allow employment, could result in civil or criminal penalties. Immigration authorities have created Form I-9, the Employment Eligibility Verification form, to enable employers to verify work authorization. An employee or new hire must present certain documents establishing their identity and their employment authorization. The employer is only required to examine the employee’s document and attest that it “reasonably appears on its face to be genuine.” Id. at § 1324a(b)(1)(A).

Federal immigration law also prohibits most employers from discriminating based on national origin or citizenship status. 8 U.S.C. § 1324b. It is not considered unlawful discrimination under this statute for an employer to prefer equally-qualified U.S. citizens over noncitizens with regard to hiring or recruiting. It is, however, considered unlawful discrimination for an employer to require a noncitizen to provide more or different documents than a citizen to complete Form I-9, or to refuse to accept certain documents that reasonably appear valid solely because the person is not a U.S. citizen. Id. at § 1324b(a)(6).
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April 18, 2014

New Ordinance Closes Loophole Preventing New York City Unpaid Interns from Asserting Rights Against Workplace Harassment

by Resnick Law Group, P.C.

The New York City Council unanimously passed a bill in late March 2014 amending the New York City Human Rights Law (NYCHRL) to extend the anti-discrimination provisions of the law to unpaid interns. A 2013 federal court case, in which an unpaid intern filed suit for sexual harassment and hostile work environment, inspired the bill. The court dismissed the intern’s claims because city and state law, it found, do not apply to interns. Wang v. Phoenix Satellite Television US, No. 1:13-cv-00218, mem. order (S.D.N.Y., Oct. 3, 2013).

The plaintiff in Wang was a graduate student in journalism at Syracuse University in December 2009 when she began working as an unpaid intern for the American subsidiary of Phoenix Media Group, a television news company based in Hong Kong. She viewed the internship as a training opportunity, with the possibility of a full-time job after she graduated. She reported to the Washington DC bureau chief, who also oversaw operations in New York.

While the bureau chief was in New York one night in January 2010, she and several employees met him at a restaurant. She alleged in her lawsuit that he asked her to stay after the meal to discuss job prospects, then invited her back to his hotel. He allegedly made sexual comments that made her uncomfortable, but she felt that she could not refuse his invitation to go to his room because he was her boss. Once they were alone, he allegedly threw his arms around her, groped her, and attempted to kiss her. She broke free of him and left the hotel. After that, she claims, he ceased to express any interest in hiring her.
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March 31, 2014

New Jersey Law Against Discrimination Now Protects Workers from “Salary Secrecy” by Prohibiting Retaliation for Inquiring About Wage Discrimination

by Resnick Law Group, P.C.

An amendment to the New Jersey Law Against Discrimination (NJLAD) that took effect in January 2014 protects employees from retaliation by employers for asking about co-workers’ salaries as part of an investigation into wage discrimination. Prior to this amendment, New Jersey labor law already protected workers, commonly known as whistleblowers, who investigated or reported various unlawful practices by their employers, but did not protect workers who investigated certain practices. Many companies employment have “salary secrecy” policies that prevent employees from inquiring about other employees’ wages, making wage discrimination claims difficult.

Despite laws at the state and federal level prohibiting overt wage discrimination based on gender, the gap in wages between men and women is alive and well in New Jersey and around the country. Salary secrecy is among the biggest reasons for this continued disparity. Companies discourage employees from discussing pay with one another, and in some cases, even terminate employees for asking about other employees’ wages. A 2012 Forbes article found that companies with salary secrecy policies often had little justification for the policies aside from management’s unwillingness to explain their salary decisions to others. Such policies may also increase employee dissatisfaction and reduce overall efficiency, while more transparent policies have had positive results. The new amendment to the NJLAD effectively bans salary secrecy in New Jersey.

New Jersey law prohibits sex discrimination “in the rate or method of payment of wages.” N.J. Rev. Stat. § 34:11-56.2. It also prohibits employers from retaliating against employees who complain to the employer or the New Jersey Civil Rights Commission about alleged wage discrimination. N.J. Rev. Stat. § 34:11-56.6. The statute does not specifically mention investigations of possible wage discrimination, and this is where salary secrecy policies can prevent employees from asserting their rights.
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March 28, 2014

Lawsuit Claims Employer Fired Plaintiff for Reporting Racial Discrimination, Sexual Harassment Within Company

by Resnick Law Group, P.C.

A federal lawsuit accuses a New York business of firing the plaintiff in retaliation for his report of unlawful employment practices. Giraldo v. The Change Group New York, Inc., et al, No. 1:14-cv-00375, complaint (S.D.N.Y., Jan. 21, 2014). The plaintiff, who is a gay man, also alleges that he was subjected to ongoing sexual harassment, discrimination, and a hostile work environment based on sexual orientation. The lawsuit asserts causes of action for retaliation, discrimination, and harassment in violation of federal, state, and city law.

The plaintiff was employed as a sales consultant by a currency exchange group in Manhattan from December 2012 until November 2013. He alleges multiple instances of harassment by two managers in the office, including inappropriate comments about his sexual orientation. One of the managers allegedly displayed similar behavior towards female employees and customers on a regular basis. The plaintiff claimed that he also frequently made “ethnically and racially discriminatory comments towards African American employees,” Muslim employees, and the plaintiff, who is Hispanic of Colombian descent.

In a seemingly-anonymous email sent to company executives just after midnight on October 8, 2013, the plaintiff complained about the two managers’ allegedly widespread discrimination and harassment. He identified multiple specific instances of inappropriate sexual and racial comments directed to the plaintiff, and inappropriate comments and behavior directed at others. He also noted his concern that speaking out publicly would cost him his job, as people who expressed dissenting opinions were often “squashed or treated as heretics” by the managers. He specifically stated that if he attached his name to the email, he believed he would be fired.
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March 20, 2014

Lawsuit in New Jersey State Court Accuses Police Department of Sexual Harassment, Race Discrimination, and Harassment

by Resnick Law Group, P.C.

A lawsuit filed in a New Jersey Superior Court against a police department and several police officials seeks over $1 million in damages for alleged race discrimination, sexual harassment, and retaliation. The plaintiff in Cruz v. Old Bridge Police Department, et al alleges that the department ignored her repeated complaints of sexual harassment because of her race, and then subjected her to retaliation and a hostile work environment that prevented her from returning to work. The New Jersey Law Against Discrimination (NJLAD) protects workers from employment discrimination based on factors like race and sex, and includes sexual harassment as a form of gender discrimination.

The plaintiff, according to local news coverage, was hired in May 2004 as an auxiliary police officer for the Old Bridge Police Department. This is a part-time position that works certain events, assisting the police department by providing crowd and traffic control. She alleges that a lieutenant began sexually harassing her shortly after she was divorced by asking her questions and making comments of an inappropriate sexual nature, and with direct sexual advances. She asserts that she asked him to stop and reported the matter to the department’s Internal Affairs unit, but the harassment continued.

When the lieutenant was promoted to captain, he became the plaintiff’s direct supervisor. She claims that he created a hostile work environment by “ostraciz[ing] here” and behaving in a “disrespectful and…demeaning manner.” The department ignored her complaints, she claims, because she is a black Hispanic woman. She received a charge of “conduct unbecoming” that she claims was false, and in September 2011 she was suspended without pay for allegedly submitting false time records in order to increase her pay. She also denies this charge. The department did not fire her, but reportedly also did not set an end date for her suspension. The township listed her employment status as “did not return,” according to the Home News Tribune. She either quit or was terminated by the department in December 2011.
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