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Articles Posted in Employment Discrimination

New Jersey Governor Phil Murphy signed a bill into law in February 2021 that creates a legal framework for the recreational use of cannabis by adults in the state. Voters paved the way for the new law when they approved Public Question 1 by a substantial margin on Election Day in 2020. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) establishes standards for licensing businesses to distribute and sell marijuana products for recreational use. It directs the New Jersey Cannabis Regulatory Commission (CRC) to work out the details through regulations. Medical marijuana has been legal in New Jersey since 2009, but the law was unclear about employee protections until the state legislature amended it in 2019. CREAMMA includes explicit protections against “adverse actions” by employers based on activity that is now legal. If you feel you’ve been treated unfairly by your employer over use of cannabis, please contact a New Jersey employment discrimination lawyer today.

The Compassionate Use Medical Marijuana Act (CUMMA) established a system for the production, distribution, sale, and possession of small amounts of marijuana for medical use under a doctor’s supervision. Section 14 of the law stated that nothing in the law “shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” In early 2020, the New Jersey Supreme Court held that, despite this language, a person using medical marijuana in compliance with CUMMA could assert a claim for disability discrimination under the New Jersey Law Against Discrimination (NJLAD).

The New Jersey Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA) in 2019, after the events that were the subject of the 2020 state supreme court ruling. CUMCA removed the language in § 14 about not requiring employers to accommodate medical cannabis use. It bars employers from discriminating against employees because they are registered medical marijuana users. It does not bar workplace drug testing, but states that employees who test positive for cannabis must have an opportunity to produce a prescription.

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Arbitration agreements are a common feature in many employment contracts. Under an arbitration agreement, the employee and employer agree to submit any disputes to the arbitration process, either before or in place of filing a lawsuit. Advocates for employees’ legal rights tend to view arbitration as favoring employers for a variety of reasons. While both federal and state law generally favor enforcing arbitration agreements, New Jersey courts sometimes apply extra scrutiny to make sure they are fair to employees. A decision issued by the New Jersey Supreme Court (NJSC) in the summer of 2020 offers a cautionary example of how courts may follow the strict letter of the federal and state arbitration statutes, even when it might seem unfair to the employee. The Appellate Division had ruled in 2019 that an arbitration agreement was unenforceable under the law of contracts. In a 5-1 ruling, the NJSC reversed that decision.

Both federal and state law provide that arbitration agreements are presumed to be enforceable and irrevocable, unless a party can show “a ground that exists at law or in equity for the revocation of a contract.” 9 U.S.C. § 2, N.J. Rev. Stat. § 2A:23B-6. Even if, as is often the case, an employee has no opportunity to negotiate the specific terms of an arbitration agreement, courts will likely find it to be enforceable as long as there was a “meeting of the minds,” meaning that both parties knowingly agreed to all of the contract’s provisions.

In 2003, the NJSC ruled that an employee can only waive statutory rights, such as the right to a trial in a court of law, through “an explicit, affirmative agreement that unmistakably reflects the employee’s assent.” The court further held in 2014 that an arbitration agreement “must be clear and unambiguous” about an employee’s agreement “to arbitrate disputes rather than have them resolved in a court of law.”
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Both federal and New Jersey employment laws prohibit employers from discriminating against employees on the basis of religious affiliation, beliefs, or practices. Employers must accommodate employees’ religious practices to the extent that doing so is not an “undue hardship” on their business. As with many other areas of antidiscrimination law, what exactly constitutes an “undue hardship” is a matter of ongoing dispute. The New Jersey Law Against Discrimination (NJLAD) goes into some detail about certain types of accommodations employers must make for religious observances. Title VII of the Civil Rights of 1964 contains fewer details, but the U.S. Supreme Court has provided interpretation on several important points. Two petitions for certiorari currently pending before the court ask it to reconsider its own precedent regarding employers’ obligation to accommodate religious practices. The 1977 decision Trans World Airlines, Inc. v. Hardison (“TWA”) held that “requir[ing an employer] to bear more than a de minimis cost” to accommodate an employee’s religious practice “is an undue hardship.”

Title VII prohibits discrimination on the basis of religion, while the NJLAD uses the term “creed.” 42 U.S.C. § 2000e-2(a), N.J. Rev. Stat. § 10:5-12(a). The NJLAD does not offer a specific definition of “creed.” Title VII defines “religion” as “all aspects of religious observance and practice,” up to the point that an employer cannot accommodate an employee because of “undue hardship.” 42 U.S.C. § 2000e(j).

The Supreme Court’s ruling in TWA addresses a question specifically mentioned by the NJLAD. State law expressly states that, subject to an “undue hardship” exception, an employer cannot require an employee to stay at work on a day that they “observe[] as [their] Sabbath or other holy day.” N.J. Rev. Stat. § 10:5-12(q)(2). In this context, an “undue hardship” involves:
– Excessive expense, difficulty, or interference with business operations; or
– Violation of a seniority system or collective bargaining agreement. Id. at § 10:5-12(q)(3).

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The coronavirus pandemic continues to hit New Jersey particularly hard, although some good news has appeared in the past few weeks. Two vaccines are gradually becoming available. Certain groups of people will receive the vaccine first, starting with healthcare workers. Eventually, the vaccine will become more widely available. This will raise a question that appears almost every flu season: Can New Jersey employers require their employees to get the COVID vaccine? The answer is, of course, complicated. Employees in some jobs are required by state law to get vaccinated against influenza. Most New Jersey workers are under no legal mandate regarding vaccines, but their employers may be able to require them. Much of this area of law remains unsettled. What little case law exists is based on flu vaccine refusals, so New Jersey’s courts have yet to apply it to COVID-19.

New Jersey Mandatory Vaccination Law

New Jersey has no statewide requirement for employees to receive vaccinations. Employees of any “general or special hospital, nursing home, or home health care agency” licensed by the state must receive an annual flu vaccine. N.J. Rev. Stat. § 26:2H-18.79. This law allows medical exemptions but no religious exemptions. Outside of healthcare, employers have discretion over whether to require vaccinations.

New Jersey Employment Discrimination Law

Two common objections to mandatory vaccines come from people who are unable to receive them for medical reasons and people who object to them on religious grounds.

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Coming to work while sick is always risky, but far too many workers in New Jersey and around the country often feel they have no other choice. They might need the income from a shift, or they might fear losing their job if they call in sick. During the COVID-19 pandemic, the risks that a sick employee poses to their co-workers, customers, and others are far greater. The New Jersey Legislature enacted a law earlier this year that protects employees from losing their jobs or facing other discriminatory actions if they request time off from work during the current public health emergency because they are or might be at risk of transmitting an infectious disease. The law took effect immediately upon its approval by the governor on March 20, 2020. In September, the New Jersey Department of Labor and Workforce Development (NJDOL) issued a final set of regulations implementing these employee protections.

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against workers on the basis of numerous factors. The extent to which the law protects employees and job applicants from discrimination based on health conditions is a matter of ongoing dispute, particularly with regard to an infectious disease like COVID-19. The NJLAD’s protected categories include “disability” and “genetic information,” but the definitions provided for these terms primarily deal with long-term conditions rather than acute infections. See N.J. Rev. Stat. §§ 10:5-5(q), (oo); 10:5-12(a). The only infectious disease specifically mentioned in the text of the statute is HIV and AIDS.

The new law, A3848, does not limit its protection specifically to employees who may have contracted COVID-19. It is, however, limited to the current public health emergency. New Jersey Governor Phil Murphy signed Executive Order (EO) 103 on March 9, 2020, at a time when there were about eleven known cases of COVID-19 in New Jersey. In just under nine months, that number has increased to over 350,000 in this state alone. The governor has extended the public health emergency nine times, most recently with EO 200 on November 22.

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Both the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) protect workers against discrimination on the basis of disability. The definition of “disability” has changed over the years to encompass a wide range of conditions. The public’s understanding of addiction has begun to take psychological factors into account. This has led to questions about whether addiction may qualify as a disability under the ADA or the NJLAD. The Equal Employment Opportunity Commission (EEOC) recently reviewed the law surrounding disability discrimination as it relates to opioid use and addiction. If you feel you have been discriminated against for use of opioids, it would be prudent to discuss the matter with a New Jersey employment discrimination attorney to learn what rights you have under state and federal law.

What Do Federal and State Disability Discrimination Laws in New Jersey Say About Opioids?

Opioid addiction is a serious problem in New Jersey and throughout the U.S. The definitions of “disability” in both the ADA and the NJLAD leave open the possibility that some forms of addiction could be considered disabilities. See 42 U.S.C. § 12102(1), N.J. Rev. Stat. § 10:5-5(q). The ADA makes a specific exception, however, for individuals who are “currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a).

Opioids and Disability Discrimination

The EEOC’s guidance document delves into the language of the ADA and the regulations implementing the law. It notes that the document does not have “the force and effect of law,” but rather represents its own interpretation of the ADA. It divides the analysis into three questions, the answers to which could lead to a viable claim for disability discrimination.

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The hiring process is growing increasingly automated, as employers in New Jersey and around the country turn to artificial intelligence (AI) that uses hiring algorithms. This could be a time-saving measure for employers, helping them sort through large numbers of job applications, but it can also potentially result in violation of antidiscrimination laws. While it might seem unlikely that employers would use these algorithms for deliberate discrimination against categories protected by laws like the New Jersey Law Against Discrimination, not all unlawful employment discrimination requires discriminatory intent. AI relies on the information it receives from human users. When an AI bases hiring recommendations on existing data or past hiring patterns, it could end up perpetuating inequities. One question that courts are only beginning to address that could have an impact on New Jersey employment discrimination cases is how to determine liability when a computer engages in discrimination on an employer’s behalf.

Disparate Impact Discrimination

A policy or practice with no discriminatory intent can still violate antidiscrimination laws if it has a disparate impact on members of a protected group when compared to others. The U.S. Supreme Court first recognized disparate impact discrimination in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The employer, located in North Carolina, required applicants for certain jobs to have a high school diploma and to pass an IQ test. The policy had a substantially disparate impact on Black applicants. The court found that the employer’s policy was not “reasonably related” to the jobs in question, and that it therefore violated Title VII of the Civil Rights Act of 1964.

Discrimination in, Discrimination Out

AI algorithms are designed to simulate the functions of the human brain. They cannot “think” on their own — at least not yet. Instead, they process information according to algorithms, all provided by humans. Hiring AIs consider metrics like education and work experience. The most sophisticated hiring tools available right now can even analyze video recordings of job interviews to evaluate candidates.

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The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of a wide range of factors. In late 2001, the New Jersey Legislature passed a bill that adds display of the American flag to the list of protected categories. The law allows for New Jersey employment discrimination lawsuits to be filed, but also provides a defense for employers and sanctions for claims that lack “substantial justification.” In the eighteen years since the bill became law, it does not appear that New Jersey courts have issued any published decisions. This leaves portions of the law’s language up to interpretation.

Flag Discrimination Under the NJLAD

The “flag discrimination” statute, N.J. Rev. Stat. § 10:5-12.6, prohibits discrimination against an employee “for displaying the American flag on the employee’s person or work station.” Employers could still enact general bans on the display of symbols in the workplace, or possibly even more specific policies that focus on particular symbols. The statute appears to address employers who single out employees.

The employer could be liable for actual damages, punitive damages, attorney’s fees, and court costs. Unlike other discrimination claims under the NJLAD, an employee who brings a flag discrimination claim “without substantial justification” could be liable for the employer’s attorney’s fees and court costs.

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The U.S. Supreme Court issued a landmark decision on June 15, 2020 regarding employment discrimination on the basis of sexual orientation and gender identity or gender expression. Many state laws, including the New Jersey Law Against Discrimination include both of these as separate categories in addition to sex or gender. While Title VII of the Civil Rights Act of 1964 does not expressly include either, the Supreme Court’s 6-3 ruling in Bostock v. Clayton County, Georgia holds that Title VII’s prohibition on sex discrimination includes both categories. Justice Gorsuch’s majority opinion applies textual analysis to Title VII to determine that an employer that fires or otherwise discriminates against someone because of their sexual orientation, or because they are transgender, has discriminated against them because of sex. If you feel you have suffered discrimination on the basis of sex, it is recommended that you contact a New Jersey sex discrimination attorney as soon as possible.

Sex Discrimination Under Title VII

The meaning of “sex,” as used in Title VII, has grown over the years through both legislation and court decisions. Sex discrimination under Title VII includes discrimination on the basis of pregnancy thanks to the Pregnancy Discrimination Act of 1978. It has included sexual harassment since the Supreme Court’s 1986 decision in Meritor Savings Bank v. Vinson.

The majority opinion in Bostock identified three decisions that also expanded the meaning of sex discrimination under Title VII:
– In Phillips v. Martin Marietta Corp. (1971), the court found that even though the employer hired more women than men overall, its policy against hiring mothers of young children violated Title VII.
– A requirement that women pay more into a pension fund than men because of longevity statistics constituted sex discrimination, according to the court’s ruling in Los Angeles Dept. of Water and Power v. Manhart (1978).
– The court found that Title VII prohibits sexual harassment between members of the same sex in Oncale v. Sundowner Offshore Services (1998).

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New Jersey has allowed medical marijuana use since 2009, when a bill originally known as the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) became law. As written, the law did not specify how an individual’s use of medical marijuana would affect their employment. If an employer fires an employee because of their medical marijuana prescription, are they discriminating against the employee for the underlying medical condition? Is this unlawful disability discrimination under the New Jersey Law Against Discrimination (NJLAD)?

Two events in the last year have made the situation clearer, at least at the state level. In 2019, the Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA), which contains express protections for employees and replaces CUMMA. This year, the New Jersey Supreme Court ruled that a claim for disability discrimination was possible under CUMMA. If your employment was recently terminated for having a medical marijuana prescription, it is important that you reach out to a New Jersey disability discrimination lawyer as soon as possible to discuss your legal options.

Ambiguity in the Compassionate Use Medical Marijuana Act

Sections 8 and 16 of CUMMA, codified at N.J. Rev. Stat. §§ 24:6I-8 and 24:6I-14, left employers and employees uncertain about the rights of medical marijuana patients. Section 8 stated that the law does not permit anyone to operate a vehicle or perform certain other tasks “while under the influence of marijuana.” Section 16 stated that the statute did not “require…an employer to accommodate the medical use of marijuana in any workplace.” The statute made no mention of employees’ rights.

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