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Articles Posted in Discrimination

Race discrimination in employment can take many forms. Sometimes an employer commits an adverse act against an employee that is unambiguously based on that employee’s race, but it is usually that obvious. Employment policies that do not appear to be motivated by any sort of racial animus, can still have a substantially disproportionate impact on employees of certain races. Workplace dress codes and grooming standards, for example, can reinforce racial discrimination by placing undue burdens on people who identify as African American or Black. These policies often, without a clear business justification, prohibit Black employees from wearing their hair in certain common hairstyles, including natural hairstyles. New York City issued guidelines in early 2019 about hairstyle discrimination. The state legislatures in California and New York later enacted laws adding hairstyle discrimination to state law definitions of race discrimination. A bill currently pending in the New Jersey Legislature would make similar changes to the New Jersey Law Against Discrimination (NJLAD). If you are concerned that your hairstyle may be related to a dispute you are having at work, reach out to a New Jersey employment discrimination lawyer today.

Employment discrimination on the basis of race is prohibited under the NJLAD. N.J. Rev. Stat. § 10:5-12(a). The statute does not currently provide a definition for “race.” It relies on common usage, but even in everyday conversation, the word “race” is fraught with subtext. Dictionary definitions like “a category of humankind that shares certain distinctive physical traits” do not capture the full meaning of the term. New York City sought to address this lack of detail in its antidiscrimination law by focusing on hairstyle discrimination.

In February 2019, the New York City Commission on Human Rights (CHR) published guidelines on “race discrimination on the basis of hair.” It described this as “discrimination based on characteristics and cultural practices associated with being Black.” The term “Black,” as used by the CHR, includes people who identify as African or African American, as well as people with Afro-Caribbean and Afro-Latinx heritage. Workplace dress codes and grooming standards “are often rooted in white standards of appearance,” the CHR stated, and contribute to perceptions “that Black hairstyles are unprofessional.” Many such policies do not allow Black employees to maintain natural hairstyles. This requires them to undergo treatments to straighten their hair that are both expensive and damaging.

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New Jersey family and medical leave laws provide eligible workers with guaranteed time off from work for the birth of a child. State and federal laws also protect workers from discrimination by their employers because of pregnancy or childbirth. A company that operates a hospital in Middlesex County, New Jersey, recently settled a lawsuit brought by a former employee alleging discrimination on the basis of both pregnancy and medical leave. The settlement includes $500,000 in damages, plus attorney’s fees.

At the federal level, the Family and Medical Leave Act (FMLA) provides eligible employees of covered employers up to twelve weeks of unpaid leave per year for certain purposes, such as the birth of a child or a serious illness. 29 U.S.C. § 2612(a)(1). The eligibility criteria are based on both the total number of employees and the number of hours worked by each individual employee. See id. at §§ 2611(2)(A), (4)(A). Employers may not interfere with employees seeking to exercise their rights under these laws, nor may they discriminate against anyone for taking legally authorized leave. Id. at § 2615(a). The New Jersey Family Leave Act (NJFLA) provides similar rights and protections, with some differences. See N.J. Rev. Stat. §§ 34:11B-3(e), (f); 34:11B-4; 34:11B-9.

Both federal and New Jersey antidiscrimination statutes prohibit discrimination on the basis of pregnancy or childbirth. Title VII of the Civil Rights Act of 1964 defines pregnancy and childbirth discrimination as a form of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating on the basis of “familial status,” which includes “being the natural parent of a child” and “any person who is pregnant.” N.J. Rev. Stat. §§ 10:5-5(ll), 10:5-12(a).

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Employees who want to bring a discrimination claim against their employer under New Jersey law can file a lawsuit in court or file a complaint with a state agency. Federal law, on the other hand, requires employees to file a complaint with the Equal Employment Opportunity Commission (EEOC) before going to court. If a claimant does not complete the process with the EEOC before filing a lawsuit, the court can dismiss the suit for failure to exhaust administrative remedies. This is known as the “administrative exhaustion defense.” It is not, however, an unlimited defense for employers. The U.S. Supreme Court recently ruled in Fort Bend County v. Davis that a defendant in a federal employment discrimination lawsuit waived the defense by not raising it in a timely manner. If you are having a dispute with an employer, a discussion with a New Jersey employment attorney may help you better assess your situation.

The New Jersey Law Against Discrimination (NJLAD) gives aggrieved employees and job applicants two options. See N.J. Rev. Stat. § 10:5-13. They can file a complaint with the Division on Civil Rights (DCR), which is part of the New Jersey Office of the Attorney General. They can also file a lawsuit in New Jersey Superior Court. They cannot do both, so careful planning and preparation is key to any employment discrimination claim.

Title VII of the federal Civil Rights Act of 1964 requires complainants to file a charge with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). The EEOC may attempt to reach a settlement with the employer, or it may file suit against the employer on behalf of the complainant. If 180 days have passed since the charge was filed and the EEOC has not resolved the dispute, the complainant can request a formal notice, commonly known as a “right to sue” letter. Id. at § 2000e-5(f)(1), 29 C.F.R. § 1601.28. This gives the complainant ninety days to file a lawsuit in U.S. District Court. Without a right-to-sue letter, the employer can raise the administrative exhaustion defense.
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New Jersey’s antidiscrimination statute protects workers from discrimination on the basis of multiple categories. Federal law supplements these rights, and also protects the right of qualifying workers to unpaid leave for medical purposes. Employers may not take adverse actions against employees or job applicants on the basis of a protected category, nor may they interfere with an employee’s exercise of their right to medical leave. A lawsuit filed in July 2019 in a New Jersey federal court alleges that the plaintiff’s employer committed each of these forms of discrimination. It further alleges that the employer failed to provide reasonable accommodations for the plaintiff’s religious practices and her perceived disability.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of disability, religion, and other factors. This includes failure to accommodate an employee’s “sincerely held religious practice or religious observance,” provided that doing so does not cause “undue hardship” to the employer. N.J. Rev. Stat. § 10:5-12(q)(1). Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of religion, including any “religious observance or practice” that an employer can accommodate without undue hardship. 42 U.S.C. §§ 2000e(j), 2000e-2(a).

The federal Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. It also requires reasonable accommodations, subject to a similar exception for undue hardship. 42 U.S.C. § 12112. In addition to a wide range of “physical or mental impairment[s],” the ADA defines “disability” as “being regarded as having such an impairment.” Id. at §§ 12102(1)(C), (3). The NJLAD’s definition of “disability” does not expressly include the perception of having a disability. N.J. Rev. Stat. § 10:5-5(q).

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On July 7, 2019, the U.S. Women’s National Soccer Team (USWNT) won its fourth Women’s World Cup title, defeating the Netherlands 2-0. This victory also brought attention to the controversy regarding the players’ wages. Twenty-eight members of the USWNT filed suit in March 2019 against the United States Soccer Federation (USSF), the governing body for both the men’s and women’s national teams. The lawsuit alleges violations of the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964. It seeks certification as a collective action under the EPA and a class action under Title VII. While the suit is pending in the Central District of California, one of the plaintiffs resides in New Jersey and plays for the Piscataway-based professional soccer team Skye Blue FC. Another plaintiff resides in New York.

Title VII prohibits employers from discriminating on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). This includes disparate salaries for substantially similar work. The EPA addresses this issue more directly, barring employers from paying employees at different rates based on sex, when the jobs “require[] equal skill, effort, and responsibility…under similar working conditions.” 29 U.S.C. § 206(d).

Congress enacted the EPA as an amendment to the Fair Labor Standards Act (FLSA), which governs minimum wage, overtime, and other pay-related issues. An employee may assert claims under the FLSA for themselves and on behalf of “other employees similarly situated,” provided that those employees consent in writing. Id. at § 216(b). For Title VII claims, a group of plaintiffs can ask a court to certify their case as a class action if they can establish four elements: numerosity of claimants, commonality of claims, typicality of the representatives’ claims, and ability of the representatives to represent the other class members. Fed. R. Civ. P. 23(a).
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Many statutes that prohibit discrimination on the basis of disability also prohibit discrimination because of a person’s relationship or association with a person with a disability. For example, an employer would engage in an unlawful employment practice under one of these statutes if they terminate or otherwise take adverse action against an employee because a member of the employee’s family has a covered disability. The federal Americans with Disabilities Act (ADA) expressly prohibits this sort of “associational discrimination.” See 42 U.S.C. § 12112(b)(4). The New Jersey Law Against Discrimination (NJLAD) does not specifically mention associational discrimination, but courts have found that it is included in the statute’s prohibition on discrimination based on disability and other factors. In June 2019, the New Jersey Appellate Division ruled that an individual who resides in Illinois can assert a claim for associational discrimination under the NJLAD against his New Jersey-based former employer. If you have a workplace dispute, a New Jersey employment lawyer can help make sense of state and federal laws that could have an impact on your case.

According to the Equal Employment Opportunity Commission (EEOC), the ADA takes a broad view of associations and relationships. It is not limited to close family members like spouses, children, or parents. The EEOC offers a hypothetical example of an individual who “tutors children at a local homeless shelter” that “is well-known for providing job placement assistance for people living with HIV/AIDS.” ADA regulations identify HIV as a covered disability. See 29 C.F.R. § 1630.2(j)(3)(iii). If that individual’s employer terminates them because of that activity, the EEOC says that they would be in violation of the ADA. The “association” in this example is minimal when compared to many familial relationships.

The defendant in the case described above is based in New Jersey. It hired the plaintiff in 2008 to work as a vice president at the office of a subsidiary in Illinois. The employment agreement included choice of law clauses identifying New Jersey as the governing law and venue for disputes. The plaintiff’s wife was diagnosed with breast cancer that same year. It went into remission but returned in 2014. The defendant was aware of her condition. The plaintiff alleges that, in 2016, the defendant denied him an opportunity for a promotion and then terminated him.
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The New Jersey Law Against Discrimination (NJLAD) offers extensive protections against discrimination in the workplace and elsewhere. This includes factors like sexual orientation and gender identity or expression, which are not explicitly identified as protected categories under federal law or laws in many other states. Title VII of the Civil Rights Act of 1964 identifies five protected factors, including sex. Court decisions and amendments to the statute have expanded the federal definition of “sex discrimination” to include sexual harassment and pregnancy discrimination. Most federal courts have been reluctant to expand the definition further to encompass factors like sexual orientation. In April 2019, the U.S. Supreme Court agreed to hear appeals in two cases that involve sexual orientation discrimination claims under Title VII. The two appellate courts reached different conclusions, creating a circuit split. The Supreme Court also accepted a Title VII case alleging gender identity discrimination, despite the lack of a circuit split.

Employers in New Jersey may not discriminate against employees or job applicants on the basis of “affectional or sexual orientation.” N.J. Rev. Stat. § 10:5-12(a). State law defines this as various forms of “attraction or behavior” that are directed principally towards members of one particular gender or either gender. Id. at §§ 10:5-5(hh) – (kk). It includes a person’s actual “inclination, practice, identity or expression” of a particular orientation; a history of the same; or the perception of having a particular orientation. Id. at § 10:5-5(hh).

Some courts have concluded that Title VII’s prohibition on sex discrimination already includes discrimination on the basis of sexual orientation. Discriminating against an individual because of the gender or sex to which they are attracted is, in essence, discrimination on the basis of sex. A Supreme Court ruling that recognizes “sex stereotyping” as a form of sex discrimination under Title VII arguably supports this interpretation. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
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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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