Articles Posted in Discrimination

Employers have begun relying on various artificial intelligence (AI) tools to streamline the hiring process and other aspects of the employment relationship. While the marketing for these tools sometimes claims that they can perform certain tasks better than humans, experience demonstrates that they are not free of many human biases. Humans programmed the AIs, after all, and may have included their own biases in the code. Two pending bills would amend New Jersey employment law to regulate the use of these tools in the hiring process. One would require “bias audits” of AI-based analytical tools. The other bill deals specifically with AI tools that analyze video interviews of job applicants.

The Use of AI in Hiring

The term “artificial intelligence” can refer to several types of software applications. Generative AI, for example, can create written or visual works based on user prompts. Employers use analytical AI tools to go through large amounts of data and make recommendations or decisions. For example, an AI system could screen job applicants based on whatever factors employers choose. This is the source of much of the concern about AI in employment decisions. Employers are ultimately liable for bias in an AI tool’s algorithm.

Automated Employment Decision Tools

A3854, introduced in the New Jersey Assembly on February 22, 2024, would regulate companies that produce and sell “automated employment decision tools” (AEDTs), as well as the employers that use them. The bill defines an AEDT as a system that uses statistical theory or a learning algorithm to filter job applicants or employees in a way that “establishes a preferred candidate or candidates.” Any AI system that screens job applicants would fit this definition.
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New Jersey employment law prohibits employers from screening job applicants based on their salary history. Employers also may not require applicants to provide salary history information. The law helps job seekers overcome historical disparities in pay. It requires employers to base new hires’ pay on the market rate for their labor rather than their previous salary or wages. The law includes an exception for situations where a federal law or regulation requires job applicants to disclose salary history, or employers to verify that information. This exception might not be an issue much longer for many situations governed by federal law. In January 2024, the Federal Acquisition Regulatory (FAR) Council published proposed regulations in the Federal Register that would prohibit federal contractors from asking job applicants for salary information or using salary history to screen applicants.

A 2019 New Jersey law addresses how employers may use salary history during the hiring process. Employers may not require applicants to provide information about past wages or salary. They may not use that information in hiring decisions. If, however, an applicant provides such information voluntarily, “without employer prompting or coercion,” the employer may consider that information when determining that individual’s “salary, benefits, and other compensation.”

Employers who violate the 2019 law may face civil penalties, payable to the state, that start at $1,000 for a first violation. A second violation carries a $5,000 fine, and a third may result in a $10,000 fine. If a job applicant is part of a protected group under the New Jersey Law Against Discrimination, they may also have the right to sue for violations of the salary history law.
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Employment disputes can often become quite complicated. Multiple issues and complaints can combine to create an untenable situation, or one grievance can turn into many. Workplace discrimination, for example, can lead to retaliation for opposing or reporting that discrimination. New Jersey employment law protects workers against numerous types of adverse actions by employers. A lawsuit filed in a New Jersey state court last month presents a complicated series of allegations, including sexual harassment, hostile work environment, and retaliation. It also alleges discrimination based on association with an individual who reported alleged wrongdoing.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination based on sex and numerous other factors. This includes sexual harassment that creates a hostile work environment. The law protects people who have experienced unlawful acts but fear for their jobs if they come forward. Employers may not retaliate against someone because they “opposed any practices or acts forbidden under this act.” Employees have similar protections in the Conscientious Employee Protection Act (CEPA). This law prohibits retaliation against employees for reporting suspected wrongdoing by an employer.

The lawsuit described above also alleges “associational discrimination.” This cause of action derives from a 1995 decision by the New Jersey Supreme Court. The plaintiffs in that case were co-workers and relatives of an employee who had previously sued their employer under the NJLAD for retaliation. They alleged that the employer had retaliated against them because of their association with that individual. The court held that this was a valid NJLAD cause of action.
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Service in the U.S. military and other uniformed services can mean a great deal of uncertainty. People who serve in the National Guard or Armed Forces Reserves have training obligations and may find themselves called to active duty. This can cause difficulties with employment in both the private sector and non-military government jobs. New Jersey employment law prohibits employers from discriminating based on military service obligations, but its protections only cover mandatory service in the Armed Forces. Federal law goes further by addressing servicemembers’ ability to return to their jobs after their service ends. The Uniformed Services Employment and Reemployment Rights Act (USERRA) turns thirty this year, having become law in October 1994. It offers important protections for New Jersey servicemembers.

Who Does USERRA Cover?

USERRA applies broadly to people on active or inactive duty in any of the uniformed services of the United States. This includes the six branches of the Armed Forces: the Air Force, Army, Coast Guard, Marine Corps, Navy, and Space Force. It also includes the Commissioned Corps of the Public Health Service and the National Oceanic and Atmospheric Administration. The Surgeon General, for example, is an officer with the Public Health Service.

In contrast, New Jersey’s antidiscrimination law only applies to mandatory active duty service in the Armed Forces. This includes service in a National Guard or Reserve unit and induction through a draft.
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When applying New Jersey employment laws dealing with discrimination, courts have long held that plaintiffs must prove that they suffered actual harm. This might involve the loss of a job, lower wages, or the loss of other benefits or features of employment. Many courts around the country have applied similar interpretations to laws like Title VII of the Civil Rights Act of 1964. A case pending before the U.S. Supreme Court could change how courts in New Jersey and nationwide interpret these laws. A police sergeant alleges that her employer discriminated against her based on sex by transferring her to a different position. The lower courts found that she had not established that an “adverse employment action” had occurred. A ruling in her favor could help plaintiffs prove unlawful discrimination in cases where the discrimination did not cause them to suffer major disadvantages.

Title VII prohibits discrimination based on several categories, including sex. Section 703(a)(1) of the statute addresses unlawful practices by employers. While it identifies several specific adverse actions, such as firing someone or refusing to hire them, it also includes a catch-all category that simply states employers may not “otherwise…discriminate” against employees or job applicants because of sex or other protected categories.

The plain language of § 703(a)(1) does not necessarily require proof that a discriminatory act had a negative impact. This might affect the amount of damages a plaintiff could receive, but under this view, it would not affect whether or not they could assert a claim. Most courts, however, have taken the view that some employment discrimination claims require proof that a plaintiff suffered tangible harm.
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Harassment in the workplace violates federal and New Jersey employment laws in certain circumstances. The harassment must be based on a protected category like race, sex, or religion. It must negatively impact someone’s employment, such as when it creates a hostile work environment. The Equal Employment Opportunity Commission (EEOC) investigates alleged harassment that violates federal employment laws like the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964. In October 2023, the agency issued a new proposed guidance document on unlawful workplace harassment and sought comments from the public. Should the EEOC decide to issue a final guidance document, it would be the first significant update to its guidance in over twenty years.

When Is Harassment Unlawful?

Offensive conduct rises to the level of unlawful harassment in several situations. First, the conduct must be motivated by a protected characteristic like race or sex. Second, one of the following must apply:
– A worker must endure offensive, unwelcome conduct to maintain their employment;
– The conduct is so severe or pervasive that a reasonable person would consider the work environment to be hostile; or
– The conduct is intended to retaliate against a worker for legally protected activities like reporting alleged discrimination.

What Kinds of Conduct Can Constitute Harassment?

A wide range of behaviors can constitute harassment, including offensive jokes or comments, offensive images or gestures, ridicule, intimidation, threats, or physical assault. It can come from managers, supervisors, co-workers, and non-employees like contractors or customers.
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Employment discrimination can take many forms, some of which are practically invisible to anyone who does not have access to an employer’s books. Pay disparities based on factors like sex or race are still common in many workplaces. Laws like the federal Equal Pay Act (EPA) attempt to address gender-based wage gaps, and antidiscrimination laws can help take on pay disparities based on other factors. Some employers maintain policies that make addressing wage gaps difficult, such as by leaving pay information out of job listings. Advocates for fair pay need this information to identify where wage gaps are occurring. Pay transparency laws attempt to rectify this issue by requiring disclosure of wage rates. New Jersey employment law currently does not include pay transparency provisions, but a bill pending in the state legislature could change that.

Many wage gaps are not intentional, meaning they did not result from conscious decisions by current managers to pay certain employees less than other employees who work the same or similar jobs. Instead, many pay disparities reflect a long history of discrimination that goes back to a time when employers did make conscious decisions to discriminate. Women, for example, often received lower pay than men based on gender stereotypes. This created a longstanding practice of paying women less than men for the same work that persists to this day. Race-based wage gaps are also very common, resulting in pay disparities that affect women of color more than most other groups.

The EPA and the New Jersey Law Against Discrimination (NJLAD) both prohibit pay discrimination based on factors like sex. The NJLAD goes further and covers every protected category, including race, color, and national origin. It also protects employees from retaliation for asking other employees how much they make or disclosing their pay rate to others.
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New Jersey employment law protects workers from discrimination on the basis of numerous factors, such as race, religion, sex, disability, and national origin, to name only a few. In some cases, an employer’s unlawful actions clearly violate someone’s legal rights based on one of the protected categories identified in state and federal law. The categories can blur together in other cases, though. This can create confusion. It can also lead people to overlook claims that they might have under state and federal antidiscrimination laws. Some types of bias and discrimination can span multiple categories, including race, color, religion, and national origin. New Jersey employees should be aware of their rights when it comes to these types of issues.

Both the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Right Act of 1964 specifically identify race, color, religion, and national origin as protected categories. This means that employers may not take adverse actions against employees or job applicants on the basis of any of these factors. This includes refusing to hire someone, demoting them, firing them, or denying them opportunities to advance their careers. Employers may have to make reasonable accommodations for employees’ religion observances, as long as doing so does not create an undue burden.

Title VII does not provide definitions for the terms “race,” “color,” or “national origin.” It defines “religion” as including “​​all aspects of religious observance and practice.” The NJLAD does not define “religion,” “color,” or “national origin.” Its definition of race includes the common understanding of that term along with “traits historically associated with race,” such as hairstyles and types of hair.
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The term “quiet quitting” gained traction on social media in 2022, and debates over whether or not it is a real phenomenon have continued throughout 2023. It generally involves employees who are unwilling to do more than what their job description specifically requires. A related concept, “quiet firing,” has also emerged. It involves an employer that, rather than directly firing an employee, takes adverse actions that drive the employee to the point of resigning. While “quiet firing” might be a new term, it is not a new concept in New Jersey employment law. Constructive discharge, in which an employer makes working conditions so intolerable that an employee feels they have no choice but to quit, may violate laws against wrongful termination, discrimination, harassment, and retaliation.

What Is “Quiet Firing”?

The Harvard Business Review (HBR) defines “quiet firing” as the practice of “intentionally creat[ing] a hostile work environment that encourages people to leave voluntarily.” This arguably saves the employer money on severance and unemployment benefits.

This is hardly new to the workplace. Individual managers and supervisors have long used these kinds of tactics to drive out employees for various reasons. The HBR, however, suggests that some employers are now being more systematic about it. It notes studies from the past few years that show growing numbers of employees who leave their jobs for reasons like “feeling disrespected.”
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Workers who suffer injuries or illnesses may have protection against losing their jobs if they are temporarily unable to work. New Jersey employment laws prohibit discrimination on the basis of disability. The definition of this term under state law includes many temporary conditions that can arise from injury or illness. During the COVID-19 pandemic, thousands of people nationwide were unable to work at any given moment because of COVID infections. Emergency state and federal laws provided some forms of paid sick leave for people dealing with COVID. It largely fell to antidiscrimination laws to address disparate treatment because of COVID infections. The New Jersey Attorney General (AG) recently announced that his office had settled a disability discrimination claim against a community college district that allegedly fired an employee suffering from COVID rather than granting him accommodations to allow him to continue working. The settlement requires the employer to re-hire the employee and pay him damages.

The New Jersey Law Against Discrimination (NJLAD) provides a broad definition of “disability.” A person must have a condition that either “prevents the typical exercise of any bodily or mental functions” or “is demonstrable…by accepted clinical or laboratory diagnostic techniques.” COVID-19 meets this definition of “disability” since, among other effects, it can severely impact the respiratory system, leaving a person with limited ability to exert themselves.

Employers may not discriminate against employees or job seekers based on disability, as defined by the NJLAD. This means that an employer may not fire or refuse to hire someone based primarily on a disability. It also means that employers must provide reasonable accommodations that would allow employees with disabilities to do their jobs. “Reasonable” means that the requested accommodation may not be too much of a burden on the employer or their business.
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