Articles Posted in Employment Discrimination

The U.S. Supreme Court issued a ruling in April 2024 that addresses an important question about what plaintiffs must prove in employment discrimination claims. Federal and New Jersey employment laws do not expressly state that a plaintiff alleging discrimination must prove that they suffered significant harm. Many courts, however, have interpreted antidiscrimination laws as requiring this kind of proof. The Supreme Court’s ruling in Muldrow v. City of St. Louis overturned multiple lower court precedents applying this interpretation to Title VII of the Civil Rights Act of 1964. It held that a discriminatory job transfer is unlawful even without evidence of a “materially significant disadvantage.”

Section 703(a)(1) of Title VII deals with unlawful employment discrimination. It mentions acts like “fail[ing[ or refus[ing] to hire” a person and “limit[ing], segregat[ing], or classify[ing]” employees in discriminatory ways. It does not specifically state that a discriminatory employment action must cause harm to the person experiencing the discrimination. Before Muldrow, many courts had interpreted this provision as requiring proof of harm in at least some cases. This includes courts in New Jersey.

The Third Circuit Court of Appeals has held that Title VII discrimination claims involving “adverse employment actions” require proof of a “cognizable injury.” The injury must be serious enough to alter the “terms, conditions, or privileges of employment.” In the 1997 decision establishing this rule, the court held that “unnecessary derogatory comments” made toward the plaintiff did not rise to this level. Refusal to recommend the plaintiff for a promotion based on discriminatory grounds, however, would meet the standard. Muldrow may overturn the Third Circuit’s rule.
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Discrimination based on a person’s national origin violates New Jersey employment laws. This includes discrimination in decisions related to hiring, promotions, job duties, benefits, firing, and other features of employment. It also includes harassment based on national origin, such as when unwelcome remarks, jokes, slurs, or other conduct creates a hostile work environment. Employers may not retaliate against an employee who reports or opposes national origin discrimination in the workplace. A lawsuit went to trial earlier this year in which a plaintiff alleged national origin discrimination based on her accent. In early March, a jury in an Essex County Superior Court awarded her $1 million in damages.

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination based on numerous factors, including national origin, ancestry, race, and color. This includes both actual and perceived national origin, as well as stereotypes about one’s national origin. The Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination law, states that the following may constitute unlawful national origin discrimination:
– Discrimination based on a person’s accent when their manner of speech does not interfere with their job;
– Language fluency requirements that are not reasonably related to the job; and
– English-only rules that are not necessary for workplace safety or efficiency.

The plaintiff in the Essex County lawsuit was born and raised in Romania. According to her complaint, she and her husband immigrated to the United States in 2000 and became naturalized citizens in 2005. She states that she began studying English in the second grade. She obtained a master’s degree from a New Jersey school, with all instruction taking place in English. She states that she began working for the defendant in 2012 and that her employment went well for several years.
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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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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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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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Employers are increasingly relying on tools that use artificial intelligence (AI) for various employment-related purposes. AI tools can be useful for tasks that require sifting through large amounts of information, such as the hiring process. New Jersey employment laws set limits on employers when they are making hiring decisions. Employers may not, for example, screen job candidates based on protected categories like disability, genetic history, or pregnancy. Employers are liable for these types of hiring decisions even when they outsource them to someone else. This includes AI tools, but the law in New Jersey remains unclear on how laws against employment discrimination apply to virtual decision-makers. The White House recently issued an executive order (EO) providing directives to various executive agencies regarding AI. These include instructions to agencies that enforce federal employment laws to review current AI practices with the goal of “ensur[ing] that AI deployed in the workplace advances employees’ well-being.”

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from taking various adverse actions against job applicants and employees solely based on factors like race, religion, sex, sexual orientation, disability, and others. This includes refusing to consider someone for employment because of a protected category. Many of the categories identified by the NJLAD have historically served as the basis for countless adverse hiring decisions.

One concern about the use of AI in screening job applicants and assisting in hiring decisions is that human biases, whether consciously held or not, could become part of the software’s algorithms. Neither federal nor New Jersey employment laws currently address this concern. New York City enacted a bill several years ago that requires periodic “bias audits” for AI-based tools that employers use in the hiring process. This process involves reviewing AI tools to see if they have any sort of disparate impact on members of protected categories. Lawmakers introduced a similar bill in the New Jersey Assembly in December 2022, but it has not advanced beyond its initial committee assignment.
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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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