Articles Posted in Discrimination

Federal and New Jersey employment laws prohibit discrimination on the basis of disability, which includes hearing loss. Employers must make reasonable accommodations for employees with qualifying hearing impairments as long as it does not create an undue hardship. The federal Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) often differ in the scope of their protections, with state law tending to be more expansive. The definition of “disability” under federal law, in turn, tends to be more restrictive. The Equal Employment Opportunity Commission (EEOC), which enforces the ADA and other federal employment statutes, recently issued guidance on how employers may address employees or job applicants with hearing disabilities.

The NJLAD defines “disability” as a range of conditions that either “prevent[] the typical exercise of any bodily or mental functions” or can be demonstrated through “accepted clinical or laboratory diagnostic techniques.” The ADA’s definition depends more on how a condition affects an individual. In order to qualify as a disability under the ADA, a condition must “substantially limit[] one or more major life activities.”

When an employee with a qualifying disability requests an accommodation, the employer must consider whether providing that accommodation would pose an undue hardship. They must work with the employee to find the best way to help them perform their job duties. Factors that employers may consider during this process include the cost of a requested accommodation and the effect it will have on the workplace, other employees, and the employer’s business.
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The Consolidated Appropriations Act (CAA) of 2023 became law on December 29, 2022. The bill includes two new laws, originally introduced as separate bills, that address pregnancy discrimination in the workplace. While New Jersey employment law provides a rather wide range of protections for employees who are pregnant or have recently given birth, federal law is still catching up. These new laws address the physical needs and limitations that often accompany pregnancy and childbirth, which may require accommodations in the workplace. The Pregnant Workers Fairness Act (PWFA) prohibits discrimination based on “known limitations” associated with pregnancy or childbirth. The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act addresses the need for employees with newborns to have break time and a private location to express breast milk. Some provisions of the laws became effective immediately, while others will take effect later in 2023.

New Jersey Pregnancy Discrimination Law

Both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination on the basis of pregnancy, childbirth, and associated medical conditions. The NJLAD goes a step further than federal law by specifically requiring employers to make reasonable accommodations for pregnant employees, such as extra breaks for water or to use the restroom, modified work schedules, and lifting restrictions. At the federal level, the Americans with Disabilities Act (ADA) arguably provides this for at least some conditions related to pregnancy or childbirth, but it does not address reasonable accommodations in those specific contexts.

The NJLAD and the federal Fair Labor Standards Act (FLSA) both require employers to provide employees who are breastfeeding their children with a private location other than a restroom where they can express milk. Section 7(r) of the FLSA specifically states that employers are not obligated to pay employees for time spent exercising these rights.
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Since early 2021, New Jersey employment law has protected workers in this state from discrimination or other adverse employment actions based on their use of cannabis outside work, as well as their refusal to engage in cannabis use. Employers may still prohibit the use of cannabis in the workplace, and they may take reasonable measures to prevent employees from working while under the influence of cannabis. State law limits the use of drug testing by employers, but the New Jersey Cannabis Regulatory Commission (NJCRC) still has not issued final guidelines on this part of the law. It issued extensive guidelines in September 2021 that did not address employment issues. One year later, the NJCRC issued interim guidance on employment, which offers some direction on workplace drug testing.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in February 2021. Section 48 of CREAMMA, codified as § 24:6I-52 of the New Jersey Revised Statutes, addresses cannabis in the workplace. It prohibits discrimination based on an employee’s or job applicant’s cannabis use, or lack thereof. If an employee tests positive for cannabinoid metabolites because of cannabis use that is legal under CREAMMA, their employer may not take adverse action against them solely on that basis.

The statute allows employers “to maintain a drug- and alcohol-free workplace,” such as by not allowing employees to be under the influence of cannabis during work hours. Employers may require their employees to submit to drug tests under certain circumstances:

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New Jersey’s employment laws offer a wide range of protections for workers, including the right to paid or unpaid family leave in certain circumstances, and the right to recover remedies from employers who engage in unlawful discrimination or retaliation. In order for workers to benefit from these laws, they need to know about their rights. New Jersey employment attorneys can provide employees with everything they need to know about their legal rights, but the state wants people to know before anyone feels the need to contact a lawyer. The New Jersey Division on Civil Rights (DCR) recently adopted new regulations that require employers to provide their employees with a poster advising them of their rights under two state statutes, the New Jersey Law Against Discrimination (NJLAD) and the Family Leave Act (FLA).

The NJLAD is one of the most comprehensive anti-discrimination statutes in the country. It prohibits discrimination in hiring, firing, promotions, job duties, benefits, and other features of employment on the basis of a long list of factors. Protected categories include race, religion, age, disability, national origin, sex, sexual or affectional orientation, gender identity or gender expression, pregnancy, breastfeeding, and military service, to name a few. The statute requires employers to make reasonable accommodations for certain conditions, including many types of disability, pregnancy, and breastfeeding. It also prohibits employers from retaliating against employees who object to allegedly unlawful practices or report their concerns.

New Jersey is also one of only a few U.S. states to provide paid family leave for some employees. The FLA provides up to twelve weeks of protected leave during a 24-month period to care for a sick or injured family member or to bond with a newborn or newly-adopted child. The leave may be unpaid or partially paid. The employee may take twelve weeks of leave all at once, or they may break it up over time. Employees may be eligible for leave if their employers employ at least thirty people worldwide. An employee must have worked for the employer for at least a year, and they must have worked at least 1,000 hours in the preceding twelve-month period.
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Discrimination on the basis of gender and various other factors violates federal and state employment laws in New Jersey. Employers may not take adverse actions against employees, ranging from shunning or isolating them to terminating them, based primarily on their gender or sex. They also may not retaliate against an employee for reporting concerns about gender discrimination in the workplace. A lawsuit filed in late 2021 alleges that a hospital discriminated against a doctor because of her gender and retaliated against her for opposing such practices. She alleges that the hospital eventually fired her for discriminatory and retaliatory reasons. If you feel you are the victim of retaliation or wrongful termination, contact a New Jersey employment lawyer to discuss your situation.

The New Jersey Law Against Discrimination (NJLAD) protects employees and job seekers from discrimination based on numerous factors, including sex. It prohibits retaliation for opposing or complaining about allegedly unlawful practices. It also allows workers to bring civil claims for aiding and abetting violations. At the federal level, Title VII of the Civil Rights Act of 1964 protects a smaller number of categories against discrimination, but the list includes sex. It also includes provisions barring retaliation.

The plaintiff in the lawsuit described above worked for a hospital affiliated with a major research university. According to her complaint, she entered into a two-year employment arrangement with the hospital as an Instructor in Surgery in December 2017. She describes her performance at the hospital as “stellar,” stating that she received “outstanding patient satisfaction scores” and various honors, including a Junior Faculty Award in 2019. She reportedly received a grant from the National Institutes of Health (NIH) in early 2019 that would have covered half her salary and funded much of her research. She allegedly could not participate in the grant program, however, because of the “relentless sexism” of her supervisor.
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Federal and state employment laws in New Jersey require equal pay for workers in highly similar jobs in various circumstances. The federal Equal Pay Act (EPA) specifically addresses equal pay in terms of sex discrimination. New Jersey’s Diane B. Allen Equal Pay Act (NJEPA), on the other hand, takes on pay discrimination on the basis of any protected category under the New Jersey Law Against Discrimination (NJLAD), which is a rather long list. Equal pay claims based on sex discrimination are among the most common type of claim. A federal lawsuit filed in early 2022 in New Jersey alleges pay discrimination based on sex under both federal and state law. If you feel you may be the victim of pay discrimination, it is important that you reach out to a New Jersey employment lawyer to discuss your situation.

The EPA, codified at 29 U.S.C. § 206(d), states that employers may not discriminate based on sex when employees of one sex receive higher pay for “equal work” that “requires equal skill, effort, and responsibility…under similar working conditions.” Male and female employees working in the same position, with similar levels of education, training, or skill, should receive the same amount of pay in most circumstances. The EPA allows exceptions for systems based on merit, seniority, “quantity or quality of production,” or other factors that are not based on employees’ sex. Employers may not reduce any employee’s pay in order to comply with the law.

The NJEPA, found at N.J. Rev. Stat. § 10:5-12(t), is similar to the EPA in the protections it offers. It is not limited to pay discrimination on the basis of sex. Other categories protected under the NJLAD include race, religion, sexual orientation, gender identity or expression, pregnancy, and disability. The state law also allows exceptions for merit- or seniority-based systems, but its standard for other factors is arguably stricter than that of the EPA. An employer must show that the pay difference is solely based on factors other than sex, that it does not perpetuate pay discrimination based on any protected category, that the employer applies these factors “reasonably,” and that the factors are both “job-based” and “based on a legitimate business necessity.”
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Proving that an employer in New Jersey has engaged in unlawful employment discrimination is often difficult. The facts of a case might not include overt policies or statements that show an employer’s discriminatory intent. The U.S. Supreme Court identified a framework to use in cases where a plaintiff does not have direct evidence of an employer’s intent to discriminate. If a plaintiff can establish enough facts to support a legal claim for discrimination, the burden of proof will temporarily shift to the defendant to show a nondiscriminatory reason for their actions. This is known as the “McDonnell Douglas framework,” after the Supreme Court’s 1973 ruling in McDonnell Douglas Corp. v. Green.

Multiple federal statutes protect workers against various forms of discrimination, including Title VII of the Civil Rights Act of 1964 (race, sex, color, national origin, and religion), the Age Discrimination in Employment Act (age, for workers who are at least forty years old), and the Americans with Disabilities Act of 1990 (actual or perceived disabilities). Courts most commonly use the McDonnell Douglas framework in Title VII claims, but it may appear in claims under other federal statutes.

Many state courts have also adopted McDonnell Douglas or something similar. For example, the New Jersey Appellate Division cited the decision in a recent case involving a sex discrimination claim under the New Jersey Law Against Discrimination.
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