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Articles Posted in Employment Discrimination

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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New Jersey employment laws protect employees from discrimination on the basis of numerous factors, including pregnancy and related medical conditions. Despite some progress in recent decades, discrimination against workers who become pregnant remains a problem in New Jersey and around the country. Pregnancy discrimination violates the New Jersey Law Against Discrimination (NJLAD) and its federal counterpart, Title VII of the Civil Rights Act of 1964. Both federal and state laws also protect workers’ right to family and medical leave and prohibit employers from discriminating or retaliating against employees who use leave time that they have accrued. A lawsuit filed in state court in August alleges that an employer discriminated against the plaintiff on the basis of pregnancy and retaliated against her for using family leave. The defendant removed the case to federal court in early October.

Both the NJLAD and Title VII prohibit employers from taking adverse actions against employees on the basis of pregnancy. The NJLAD goes further by requiring employers to provide pregnant employees with reasonable accommodations for conditions related to their pregnancies. This may include additional breaks for water or to use the restroom, as well as leave from work as long as this does not pose an “undue burden” for the employer.

The Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) both require covered employers to allow qualifying employees to take leave for certain reasons without any risk to their jobs. Both laws provide up to twelve weeks of leave during a twelve-month period. Reasons for leave may include caring for a newborn child. Employers may not interfere with an employee’s use of accrued leave time, nor may they retaliate against an employee for using leave.
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Discrimination against Muslims, people with Arab heritage, and people perceived to belong to either or both of those groups has been an ongoing problem in New Jersey and around the country for a long time. This includes workplace discrimination and harassment because of a person’s religious beliefs or practices, or stereotypes about that person’s religion. New Jersey employment discrimination on the basis of religion violates both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD). With regard to Muslim workers, this type of discrimination can, in some cases, overlap with discrimination based on national origin or race. A New Jersey woman brought attention to this issue earlier this year with allegations of discrimination and harassment because of her Muslim faith. This led to a commitment by the employer to change how it investigates such claims. Another case, which alleged race discrimination by the same employer, resulted in a lawsuit and settlement.

Title VII bars employment discrimination on the basis of five factors: race, color, religion, national origin, and sex. This includes a wide range of actions by managers, supervisors, co-workers, customers, and others. The NJLAD also prohibits discrimination based on these factors and includes many more protected categories. Employers may not take overtly discriminatory actions against someone because of a protected factor, such as refusing to hire job applicants who are or are perceived to be Muslim. These laws also address less obvious forms of discrimination, such as workplace harassment motivated by an employee’s religion, race, sex, or other protected characteristics.

The two cases mentioned above involve female former employees of a major Wall Street asset manager. The plaintiff in the lawsuit is a Black woman who worked there from 2014 to 2020. She alleged that despite putting forth a “commitment to racial equality and inclusion” after the social justice protests of 2020, the firm had “​​serious race and sex discrimination problems of its own making.” The company, she claimed, routinely promoted white employees over Black employees with more experience and qualifications. She filed suit against the company at the beginning of 2021, alleging that she was forced out of the firm in retaliation for expressing her concerns about race discrimination. The suit was settled in the summer of 2021.
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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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Arbitration is a form of alternative dispute resolution (ADR) that resembles a trial in numerous ways, but unlike a trial, there is neither a judge nor a jury. A neutral arbitrator (or panel of arbitrators) with dispute resolution training makes the final decision about the case. Courts all over the country welcome ADR as a way of relieving overburdened dockets. Employers frequently require workers to sign arbitration agreements stating that they will arbitrate any dispute that arises related to the employment instead of going to court. The New Jersey Appellate Division recently ruled that a plaintiff alleging national origin discrimination must submit his case to arbitration because of this kind of agreement.

National origin discrimination violates both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD). According to the Equal Employment Opportunity Commission (EEOC), national origin discrimination includes discrimination because of:
– Actual national origin: A person, or their ancestors, came from a particular location; and
– Perceived national origin: The person has “physical, cultural, or linguistic characteristics” associated with people from that area.

The EEOC notes that the place of origin can be a country or former country, such as Mexico, Nigeria, or the Soviet Union. It could also be a region, such as Central America, Southeast Asia, or the Balkans. People from the United States may be subjected to national origin discrimination, too.
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Harassment in the workplace could violate state and federal antidiscrimination laws when it is based on a protected category, such as race, religion, national origin, or gender. In order to prevail on a New Jersey workplace harassment claim, a plaintiff must show that the behavior rose to such a level that it created a hostile work environment. Exactly when offensive behavior reaches this level depends on the circumstances of each case. In June 2021, the New Jersey Supreme Court ruled that a supervisor’s alleged use of a particular slur in the plaintiff’s presence on two occasions was enough to allow the case to go to trial.

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees on the basis of multiple factors, including race and national origin. A hostile work environment exists when harassment based on a protected category is so severe or pervasive that a reasonable person in the same position as the plaintiff would find the situation hostile or abusive. This usually involves conduct that interferes with a person’s ability to do their job.

The law’s use of the term “severe or pervasive” indicates that offensive conduct does not have to be widespread. A single incident can support a hostile work environment claim if it is bad enough. In the case that was before the New Jersey Supreme Court earlier this year, the plaintiff alleged two specific incidents involving a supervisor.
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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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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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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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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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