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Articles Posted in Employment Discrimination

Disability discrimination violates New Jersey employment laws at the state and federal levels. Employers may not take adverse actions against employees or job seekers because of an actual or perceived disability. Employers who violate these rights may be liable for damages. The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with investigating alleged employment discrimination. It occasionally pursues civil lawsuits against employers on employees’ behalf. It recently announced that it reached a settlement with a New Jersey hospital in a lawsuit alleging disability discrimination.

The Americans with Disabilities Act (ADA) of 1990 uses an expansive definition of disability that includes many conditions, injuries, and illnesses. An impairment may be considered a “disability” if it “substantially limits one or more major life activities” for a person. “Major life activities” may include most daily tasks that people tend to take for granted, as well as most “​​major bodily functions.” Illnesses or conditions that significantly impair the circulatory system, for example, could be considered a disability under the ADA.

Disability discrimination, as defined by the ADA, may include any act, practice, or policy that “adversely affects the opportunities or status” of an employee or job applicant because of their disability. It also includes failing to make reasonable accommodations for an employee or qualified job applicant, when the accommodation would not pose an undue burden on the employer and would enable the individual to perform their job duties more effectively.
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Federal and state employment laws in New Jersey protect workers from discrimination on the basis of disability. The Equal Employment Opportunity Commission (EEOC) construes the term “disability” very broadly to include an array of physical and mental conditions. We are still learning about the long-term effects of COVID-19 on some people. The symptoms of “long COVID” can be debilitating. In late 2021, the EEOC updated its guidance regarding COVID-19 to address when the illness may constitute a disability under the Americans with Disabilities Act (ADA). If you are experiencing symptoms associated with a possible disability and are concerned about how you are treated at work, please reach out to a New Jersey employment lawyer to discuss the situation.

The text of the ADA itself contains a rather general definition of “disability.” It covers impairments that “substantially limit[] one or more major life activities.” The statute defines “major life activities” as most daily tasks, such as “sleeping, walking, standing, lifting, bending, speaking, [and] breathing,” to name but a few, along with most “major bodily functions.”

The ADA’s protections apply in three situations:
– People who have a disability, as defined by the statute;
– People who have a “record” of a disability; and
– People who are “regarded as having” a disability.
A worker may experience unlawful discrimination based on a perception that they have a disability, regardless of whether they actually have a disability that impairs a major life activity.
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Workers have long had to juggle their obligations at work and caregiving responsibilities at home. This includes not only parents, but also people caring for elderly relatives, family members with disabilities, and others. The COVID-19 pandemic has made this issue much more pressing. Some jurisdictions have enacted laws that expressly protect people with caregiving responsibilities from employment discrimination. The New Jersey Law Against Discrimination (NJLAD), for example, protects parents and others with caregiving responsibilities for a child. The Equal Employment Opportunity Commission (EEOC) recently issued guidance about caregiver discrimination under federal law. While no federal employment law specifically bars discrimination on the basis of caregiver responsibilities, the EEOC identifies ways that such discrimination might still constitute unlawful discrimination. If you care for someone outside of your duties at work and have concerns that those responsibilities are impacting your status at the workplace, contact a New Jersey employment lawyer to discuss your situation.

The NJLAD prohibits discrimination against employees and job applicants on the basis of “familial status.” It defines this as having a “parent and child relationship” under state law, which includes biological parents, adoptive parents, foster parents, and other types of guardians. It also includes people who are pregnant and people who are working to gain legal custody of a minor child. Employers may not refuse to hire someone because of their familial status, nor may they fire them or subject them to other adverse employment actions on that basis.

New York City has one of the most expansive employment discrimination laws in the country. It goes farther than New Jersey law with regard to caregiver discrimination. A “caregiver,” under New York City law, includes a person with an obligation to care for a minor child. It also includes anyone who cares for a close relative or a person living in their household who depends on them “for medical care or to meet the needs of daily living.” The person must be providing “direct and ongoing care.”
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New Jersey employment laws provide safeguards against policies and practices that may create unfair roadblocks in job searches. The New Jersey Law Against Discrimination (NJLAD), for example, prohibits employers from discriminating in hiring and other areas of employment on the basis of race, sex, religion, sexual orientation, disability, age, and other factors. An area of employment discrimination that might not receive as much attention as others is discrimination in hiring against unemployed workers. The longer an individual has been out of work, the more difficult it can be for them to find a job. New Jersey law provides some protection against this kind of discrimination, although it does not go as far as other anti-discrimination laws. If you believe you have experienced discrimination because you are currently unemployed, a New Jersey employment lawyer can look at all of the circumstances surrounding the incident to see if they could support a legal claim.

A study conducted by the Federal Reserve Bank of New York and published in 2016 examined how the length of time a person is without a job can affect their chances of finding a new job. It found that the longer the gap in employment history on a person’s resume, the lower their chances of getting calls from potential employers. Even when controlling for factors like level of education, the probability of finding a job still decreases as one’s length of time without a job increases.

The Fed study took looked at data from the years after the 2007-09 recession, which resulted in unemployment rates of up to ten percent. The COVID-19 pandemic has affected employment rates in ways that we still do not fully understand. Many people lost their jobs during the pandemic and are still trying to return to the careers they had before 2020. Unemployment discrimination can be a significant hurdle.
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Criminal history can be one of the biggest stumbling blocks in the search for a job. Steady employment is a critically important factor in returning to normal life after a criminal conviction. Many employers, however, do not want to hire anyone with a criminal record, even if the specific details of a job applicant’s history would not affect the job they want to do. New Jersey’s Opportunity to Compete Act (OTCA) states that employers may not ask about criminal history until later in the hiring process. It does not offer as much protection for job applicants as similar laws in other states and cities. At the federal level, discrimination based on criminal history could be unlawful in certain circumstances. A New Jersey employment attorney can help you explore your options if you have experienced this kind of discrimination.

The OTCA only offers limited protection for job applicants with criminal records. It does not restrict how employers may act upon criminal history information once an applicant has made it past the initial stages of the hiring process. If an employer violates the statute, it does not expressly state that a job applicant may file a lawsuit for damage. Instead, it states that the only remedy for a violation is a civil penalty paid to the state.

The Third Circuit Court of Appeals considered a criminal history discrimination claim brought under the OTCA in a 2020 decision. The decision is one of the few to address criminal history discrimination in New Jersey, but it sheds little light on whether the OTCA allows private causes of action.
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Numerous states around the country have taken action to protect workers from discrimination on the basis of certain hairstyles that have a close connection to race or national origin. Many states have titled these bills the Create a Respectful and Open Workspace for Natural Hair Act, or CROWN Act. New Jersey passed its CROWN Act, which amended the New Jersey Law Against Discrimination (NJLAD), in late 2019. Title VII of the Civil Rights Act of 1964 does not specifically mention hairstyle discrimination as a form of race discrimination. On March 18, 2022, the U.S. House of Representatives passed a federal CROWN Act that will prohibit hairstyle discrimination nationwide if it becomes law. The U.S. Senate received the bill on March 22. If your employer has policies regarding appearance that conflict with your hairstyle, you may have a hairstyle discrimination claim. To learn more, reach out to a New Jersey employment lawyer as soon as possible.

Many employers have maintained policies regarding appearance that have particularly affected African-American workers and others with African ancestry. Policies that require a “professional” appearance often bar many hairstyles commonly associated with this group, including both natural and protective hairstyles. Complying with these workplace policies may require many employees to use expensive treatments to straighten their hair. Over time, these treatments can cause serious damage.

New Jersey’s CROWN Act amended the NJLAD’s definition of “race” to include “hair texture, hair type, and protective hairstyles,” along with other “traits historically associated with race.” The bill defined “protective hairstyles” to include “braids, locks, and twists.” Under New Jersey law, discrimination on the basis of hairstyles historically associated with race now constitutes race discrimination.
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Criminal background checks are increasingly common in the hiring process. They often present a major stumbling block for people who are trying to put their lives together after a criminal conviction. Many employers simply refuse to hire anyone with a felony record, regardless of whether the offense has any relation to the job a person is seeking. Employment laws in New Jersey and other states are trying to rectify the situation. The New Jersey Legislature passed the Opportunity to Compete Act (OTCA) in 2014. Federal law does not include specific protections against discrimination based on criminal history, but several provisions of federal law can indirectly affect how employers conduct background checks on job applicants.

When it passed the OTCA, the state legislature recognized the importance of “[r]emoving obstacles to employment for people with criminal records.” It found that as many as 65 million people nationwide faced difficulty finding jobs because of their criminal records, and that up to ninety percent of employers use criminal background checks to some extent during the hiring process. Since having a job “significantly reduces the risk of recidivism” for people with criminal histories, the state legislature concluded that it had to act. The OTCA does not go as far as many similar laws, but it is a step in the right direction.

The OTCA is part of a group of laws passed by state and local governments around the country known as “Ban the Box” laws. The OTCA prohibits employers from asking New Jersey job applicants about criminal history at the beginning of the hiring process. The “box” refers to the “yes/no” checkbox found on many job application forms asking whether someone has ever been convicted of a criminal offense. Checking the box, which indicates that an applicant has one or more convictions, has often resulted in the application going directly into employers’ “rejected” piles.
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New Jersey’s employment laws prohibit employers from discriminating against employees and job applicants on the basis of a wide range of factors. The New Jersey Law Against Discrimination provides the broadest protection against numerous discriminatory acts and policies, such as race discrimination or sexual harassment. Other state laws bar employers from discriminating on the basis of other factors. New Jersey’s “Smokers’ Rights Act” (SRA), enacted in 1991, addresses discrimination by employers because an employee uses — or declines to use — tobacco products. Other areas of state law restrict smoking in workplaces, so the SRA mainly addresses employers who seek to penalize employees for behavior outside of work.

The SRA states that an employer may not refuse to hire someone, fire them, or “take any adverse action…with respect to compensation, terms, conditions or other privileges of employment” because that person “does or does not smoke or use other tobacco products.” The statute makes an exception for situations when an employer has a “rational basis” for an act that would otherwise be unlawful. This “rational basis” must be “reasonably related to the employment.” When legislators use vague language like this, it is often up to the courts to determine what is “rational” and “reasonable.”

The protections provided by the SRA do not override other state laws addressing tobacco use in public. They also may not conflict with employment policies that limit or prohibit smoking in the workplace during work hours. A law passed by the New Jersey Legislature in 2005, for example, effectively bans smoking in all workplaces throughout the state. The SRA is similar to the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). This statute allows recreational cannabis use and, with some exceptions, bars employment discrimination based on cannabis use outside of work. They are both relatively unexplored areas of New Jersey employment discrimination law.
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Federal and state laws in New Jersey protect workers from discrimination on the basis of age, with some important limitations. The federal Age Discrimination in Employment Act (ADEA) sets a minimum age for workers, as well as a minimum number of employees before the statute covers an employer. Until recently, the New Jersey Law Against Discrimination (NJLAD) set a maximum age for protection from certain discriminatory acts based on age. A bill passed in late 2021 amends the NJLAD and other provisions of state law to expand the scope of age discrimination protection. It removed the maximum age and added new a new cause of action for employees. If you feel you have been discriminated against on the basis of your age, it would be worth your while to consult with a New Jersey employment discrimination lawyer at your earliest convenience.

Prior to late 2021, both the ADEA and the NJLAD set age limits for their provisions regarding age discrimination. The ADEA prohibits discrimination on the basis of age against people who are at least forty years old. A thirty-year-old individual fired because of their age, whether the employer considered them too young or too old, would therefore not be able to assert a cause of action. The statute also only applies to employers with twenty or more employees, so a fifty-year-old employee of a business with ten employees would also not have a claim under the ADEA.

The NJLAD, before its recent amendment, prohibited discrimination on the basis of age without regard to the total number of employees. It set no minimum age, so the hypothetical thirty-year-old worker would be able to make a claim. It set a maximum age, however, of seventy years. Specifically, it stated that the prohibition on age discrimination did not prevent employers “from refusing to accept for employment or to promote” a person over the age of seventy. This provided employers with a safe harbor for certain forms of age discrimination against older workers.
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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.

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