Discrimination

January 14, 2022

“Unconscious Bias” and “Conscious Exclusion” in New Jersey Employment Discrimination

Unlawful sex discrimination takes many forms in New Jersey workplaces. Overt discrimination, such as when an employer directly states an intention not to hire individuals of one gender, might not be as common as it once was, if only because it is less socially acceptable in the 21st century. It persists, though, in both blatant and subtle forms. Sex discrimination can also occur when a policy or practice disproportionately affects people of one gender, even if the employer has no intent to discriminate. The Harvard Business Review (HBR) recently published a study that examines these two forms of sex discrimination, calling them “conscious exclusion” and “unconscious bias.” The study offers some useful observations for New Jersey workers.

Disparate Treatment vs. Disparate Impact Discrimination

Title VII of the Civil Rights Act of 1964, as interpreted by the courts and the Equal Employment Opportunity Commission (EEOC), bars employers from engaging in disparate treatment based on a protected category. It also bars them from maintaining policies or practices that have a disparate impact on employees in a protected category. The New Jersey Law Against Discrimination has similar provisions.

“Disparate treatment” consists of overt acts of discrimination and other acts or omissions that directly affect someone based on their sex or another protected category. Examples include refusing to hire someone because of gender, promoting employees of one gender over employees of another without regard to qualifications or merit, and the various forms of sexual harassment.

January 10, 2022

Employment Discrimination Based on Salary History in New Jersey

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (NJLAD) bars employers from discriminating against employees and job applicants on the basis of many different factors. Despite these protections, ongoing inequalities continue to create disadvantages for many people. The use of salary history is one way that employers might — even unintentionally — perpetuate systems of discrimination. The New Jersey Legislature amended the NJLAD and other areas of state law a few years ago to address this concern. The new law limits how employers may use salary history in the hiring process with regard to members of any “protected class” under the NJLAD. If you feel you have been discriminated against over salary history issues, it would be a good idea to consult with a New Jersey employment discrimination lawyer.

Protected Classes Under the NJLAD

Section 11(a) of the NJLAD identifies eighteen protected classes. These include race, sex, religion, national origin, pregnancy, disability, ongoing military service, age, sexual orientation, and gender identity and expression. Employers may not discriminate on the basis of any of these factors.

Unequal Pay Under the NJLAD

In § 11(t), the NJLAD specifically addresses unequal pay. It prohibits employers from paying employees who belong to a protected class less than other employees.
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January 3, 2022

DOJ Settles Disability Discrimination Lawsuit Against New Jersey Rail Service

by Resnick Law Group, P.C.

Two federal laws, the Americans with Disabilities Act (ADA) of 1990 and the Genetic Information Nondiscrimination Act (GINA) of 2008, protect employees from discrimination on the basis of disability. Part of this protection involves prohibiting inquiries into employees’ medical histories that are not specifically related to those employees’ jobs. The U.S. Department of Justice (DOJ) recently announced that it had settled claims against a New Jersey rail line for allegedly conducting medical examinations and requesting health information from employees in violation of both statutes. If you have been subjected to disability discrimination in the workplace, reach out to a New Jersey employment lawyer as soon as possible.

The ADA prohibits employers from discriminating against employees and job applicants on the basis of disability. Employers may not require medical examinations of job applicants or employees under the ADA, except to ask about or assess their ability to perform specific job duties. They may require a medical examination for new hires if the examination is the same for every new employee in the same category “regardless of disability.” The ADA allows mandatory medical examinations of employees if they are “job-related and consistent with business necessity.” All other medical examinations or inquiries are prohibited.

GINA protects employees’ and job applicants’ “genetic information,” which it defines as information obtained from genetic tests an individual or their family members, as well as “the manifestation of a disease or disorder” in the individual’s family members. Employers may not request genetic information from employees or job applicants, nor may they request or obtain such information from any third party, except in specific situations. Exceptions include authorization by the employee or job applicant; publicly-available information in a newspaper or book; and “genetic monitoring of the biological effects of toxic substances in the workplace,” provided that the employer has notified the employee and obtained their written consent.
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November 24, 2021

New Jersey Disability Discrimination Laws May Protect People with “Long COVID”

by Resnick Law Group, P.C.

Employment laws in New Jersey and around the country protect workers from discrimination by their employers on the basis of disability. Both state and federal law define “disability” broadly to include a wide range of conditions, including injuries, illnesses, and congenital conditions. After nearly two years of the COVID-19 pandemic, we are learning more about the long-term effects of the disease on some people. These conditions, often known as “long-haul COVID” or simply “long COVID,” can include symptoms affecting people’s respiratory, neurological, digestive, and reproductive systems, among others. Laws addressing disability discrimination in the workplace may protect people suffering from long COVID. Not only would employers be barred from disparate treatment due to long COVID symptoms, but they would also be obligated to provide reasonable accommodations for those symptoms.

The New Jersey Law Against Discrimination (NJLAD) and the Americans with Disabilities Act (ADA) of 1990 prohibit employment discrimination on the basis of disability. The NJLAD’s definition of “disability” includes a “physical…disability…[or] infirmity…which is caused by…illness.” The statute lists many specific conditions across a broad range, such as visual or hearing impairments, paralysis, autism spectrum disorder, and HIV infection or AIDS. The initial language regarding “illness,” however, suggests that the long-term impact of disease also qualifies as a disability.

The ADA specifically states that courts and others should construe its definition of “disability” “in favor of broad coverage of individuals…to the maximum extent permitted by the” statute. It defines the term, in part, as a “physical…impairment that substantially limits one or more major life activities,” including “walking, standing, lifting, bending, speaking, [and] breathing.”
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October 29, 2021

New Jersey Courts Examine Pregnancy Discrimination Issues

by Resnick Law Group, P.C.

Discrimination on the basis of pregnancy, childbirth, and related issues remains a problem in workplaces in New Jersey and around the country despite numerous forward strides in recent years. In 2014, amendments to the New Jersey Law Against Discrimination (NJLAD) added pregnancy discrimination as a specific unlawful employment practice. This includes failure to provide reasonable accommodations to workers who are pregnant or who have given birth recently. The New Jersey Supreme Court ruled on a pregnancy discrimination claim earlier this year, affirming that both disparate treatment based on pregnancy and failure to provide reasonable accommodations are violations of the NJLAD. This could be a timely concern for many New Jersey workers who are returning to the workplace as the COVID-19 pandemic winds down. The news media have reported on numerous difficulties faced by people who are looking for jobs while also dealing with parental responsibilities.

Under federal law, pregnancy discrimination is included in the statutory definition of discrimination “on the basis of sex.” Prior to 2014, pregnancy discrimination under the NJLAD could also be viewed as a form of sex or gender discrimination. Pregnancy is now listed as a distinct protected category along with sex, gender identity or expression, and others. State law also requires employers to provide reasonable accommodations to workers, such as additional bathroom and water breaks, lifting restrictions, and modified work schedules based on their needs during pregnancy. Employers must offer these accommodations in a way that is at least equally favorable as accommodations offered for reasons other than pregnancy.

The New Jersey Supreme Court ruled in favor of a police officer who alleged pregnancy discrimination by Ocean Township and various officials. Her lawsuit involved two standing operating procedures (SOPs) regarding “light duty” work assignments. One SOP specifically addressed light duty related to pregnancy, while the other applied to injuries not related to pregnancy.
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October 8, 2021

New Jersey Federal Lawsuit Alleges Race Discrimination in Employment Background Checks

by Resnick Law Group, P.C.

A criminal conviction can have long-lasting effects on a person’s life, even after they have completed their sentence. Many employers refuse to hire applicants with felony records, and sometimes even having a record of an arrest can work against a person. Numerous states, including New Jersey, have enacted laws that restrict the use of criminal history in hiring to various degrees. The goal is to help people restart their lives once they have “repaid their debt to society,” as the saying goes. New Jersey employment laws bar employers from asking about criminal history in the early stages of the hiring process. They are not the only safeguard for job seekers looking for a fresh start. The use of criminal history in hiring can lead to discrimination on the basis of race. A putative class action filed this summer in a New Jersey federal court makes this allegation against a national retail chain.

Laws that restrict employer inquiries about criminal history are informally known as “ban the box” laws, in reference to the checkbox on many job applications asking whether an applicant has a criminal record. New Jersey’s law does not go as far as other laws. It bars employers from asking applicants about criminal history during the “initial employment application process.” After that, employers may ask, and the law does not restrict how they may use the information they obtain. Laws in some other jurisdictions prohibit employers from discriminating against job applicants on the basis of criminal history, with exceptions when an applicant’s history is directly relevant to the job they are seeking.

Laws like Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination on the basis of race. This includes both overt discrimination that treats members of one race differently from others, and “disparate impact” discrimination, in which a seemingly neutral policy or practice has a disproportionately negative effect on members of one race. A plaintiff claiming disparate impact discrimination does not need to prove that the employer intended to discriminate. They only need to show that the policy or practice was not reasonably necessary for the employer’s business operations, and that it negatively affected one race more than others.
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October 1, 2021

U.S. Justice Department Settles Discrimination Claims Against Two New Jersey Employers

by Resnick Law Group, P.C.

Federal law prohibits employers from discriminating against employees and job seekers on the basis of a variety of factors. Race, sex, and religion might be the most well-known categories protected by federal employment antidiscrimination law, but they are not the only ones. In addition to those three, Title VII of the Civil Rights Act of 1964 also bars discrimination based on color and national origin. Other federal statutes address discrimination on the basis of age, disability, and genetic information. The Immigration and Nationality Act (INA) of 1952 states that employers may not discriminate against employees and job applicants on the basis of national origin or citizenship status, provided that they are authorized to work in the U.S. Earlier this year, the U.S. Department of Justice (DOJ) announced that it had settled immigration discrimination claims against two New Jersey employers. If you have concerns about discriminatory practices in the workplace, reach out to a New Jersey employment discrimination lawyer as soon as possible.

Immigration law in the U.S. is quite complicated. In overly-simplified terms, people present in the U.S. can be described as belonging to one of five groups:
1. U.S. citizens;
2. Lawful permanent residents;
3. Nonimmigrant visa holders with employment authorization;
4. Nonimmigrant visa holders without employment authorization; and
5. Undocumented immigrants.
People enrolled in programs like Deferred Action for Childhood Arrivals (DACA) do not quite fit into these categories, since they may be authorized to work despite being considered undocumented. The key factor in the INA’s employment discrimination provisions is whether an individual can legally work in the U.S.

The INA states that employers with three or more employees may not discriminate on the basis of national origin or citizenship, with the exception that they may “prefer equally qualified citizens” over non-citizens. It is also unlawful for an employer to require “more or different documents” than those required to prove employment authorization under the INA, or to refuse to accept seemingly valid documents. Individuals may file a discrimination complaint with the DOJ. They may not, however, file a complaint of national origin discrimination with the DOJ if they have already filed a Title VII complaint with the Equal Employment Opportunity Commission alleging national origin discrimination.
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September 3, 2021

Commission Issues Guidelines on New Jersey’s Recreational Cannabis Law, but Leaves Employment Issues Out

by Resnick Law Group, P.C.

The New Jersey Legislature passed a law last year legalizing recreational cannabis. The governor signed it into law in February 2021. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) legalizes the possession and use of cannabis by people who are at least 21 years old. It also clarifies some issues related to employment law and establishes standards for workplace drug testing. In August 2021, the New Jersey Cannabis Regulatory Commission (NJCRC) issued guidelines on legal issues surrounding the personal use of cannabis. The guidelines do not address various employment issues, instead deferring them to a later date.

CREAMMA amends existing state law to include employment protections related to lawful cannabis use. Despite laws authorizing its use to varying degrees in most states, cannabis remains a Schedule I controlled substance under federal law. Many employers have continued to ban cannabis use by employees, even when they are not on the job, as part of broader “drug-free workplace” policies.

Earlier New Jersey cannabis laws legalizing its use did not provide any employment protection for individuals who used cannabis in compliance with the law, such as for medical purposes with a doctor’s prescription. Section 24:6I-52(a)(1), newly added by CREAMMA, bars employers from discriminating against employees based on both legal cannabis use and refusal to engage in legal cannabis use. They are also barred from discriminating against an employee because of “the presence of cannabinoid metabolites in the employee’s bodily fluid,” when this is the result of lawful conduct.
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July 19, 2021

EEOC Issues New Guidance on Sexual Orientation and Gender Identity Discrimination Under Title VII

by Resnick Law Group, P.C.

Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of sex and other factors. Compared to New Jersey employment discrimination law (the New Jersey Law Against Discrimination), Title VII’s list of protected categories seems short. Federal court decisions have expanded the scope of the statute beyond the narrowest literal meaning of its words, to include categories or actions mentioned more specifically in other laws. Most recently, a 2020 decision by the U.S. Supreme Court held that Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. In June 2021, the Equal Employment Opportunity Commission (EEOC) released guidance clarifying its interpretation of Title VII in light of the court’s ruling.

Federal law does not provide a specific definition of “sex” in the context of employment discrimination. The Supreme Court has built on the statute’s rather sparse language in several important rulings. In 1986, for example, the court ruled in Meritor Savings Bank v. Vinson that sexual harassment constitutes sex discrimination in violation of Title VII. That case involved sexual harassment of a female employee by a male supervisor. The court ruled in Oncale v. Sundowner Offshore Services in 1998 that sexual harassment of a man by male employees may also violate Title VII.

The Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins expanded the understanding of sex discrimination by holding that Title VII bars discrimination on the basis of “sex stereotyping.” The plaintiff in that case claimed that the defendant discriminated against her because she did not conform to expectations of how she should dress and behave as a woman. This decision did not lead directly to last summer’s ruling in Bostock v. Clayton County, but it set an important precedent.
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July 1, 2021

New Jersey Appellate Division Revives Hostile Work Environment Lawsuit

by Resnick Law Group, P.C.

Employment discrimination or harassment claims under the New Jersey Law Against Discrimination usually involve actions by specific employees, supervisors, managers, or executives. In order to make a successful New Jersey employment discrimination claim, a plaintiff must establish that the employer is legally responsible for the actions of that person or those people. This is known as “vicarious liability.” The New Jersey Appellate Division recently ruled in favor of a plaintiff in her hostile work environment lawsuit, reversing the trial court’s summary judgment for the defendant. The appellate court held that the plaintiff had raised a question as to whether her alleged harasser had acted within his authority as a supervisor when he told the plaintiff to “leave and don’t come back.”

Hostile work environment is a type of sexual harassment that occurs when one or more people engage in unwelcome sexual conduct to the point that a reasonable person would consider it to render the workplace hostile. An employer can be held vicariously liable for a hostile work environment perpetrated by any employee, even if they do not have authority over the plaintiff, as long as the employer knew or should have known about the harassment and failed to act.

The New Jersey Supreme Court issued a ruling in 2015 that defined a rule for determining whether vicarious liability should apply to an employer in sexual harassment and similar claims, when the alleged harasser was in a position of authority over the plaintiff. It based this rule on the Ellerth/Faragher analysis, named after two Supreme Court rulings from 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. The Ellerth/Faragher analysis states that a defendant can avoid vicarious liability if it can establish three elements:
1. It “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”;
2. The plaintiff “unreasonably failed to take advantage of” the remedies offered by the employer; and
3. The plaintiff was not subject to any “tangible employment action” by the alleged harasser.
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