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Articles Posted in Employment Discrimination

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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Medical marijuana use is legal to varying degrees in more than half of the states in the U.S., including New Jersey. The Compassionate Use Medical Marijuana Act (CUMMA), which was first enacted in 2009, allows individuals to purchase, possess, and use marijuana products under the direction of a physician. Prior to 2019, the text of the statute was rather ambiguous about how it impacted employees’ rights in the workplace. The New Jersey Supreme Court recently ruled on a case that began in 2017, in which the plaintiff alleged that the defendant fired him because of his lawful medical marijuana use, in violation of the New Jersey Law Against Discrimination (LAD). The court affirmed a decision from the Appellate Division that allowed the case to go forward.

Two provisions of CUMMA appear to implicate employees’ rights. Section 8 of the statute states in part that the law does not allow an individual to operate any sort of vehicle or heavy machinery “while under the influence of marijuana.” Section 16 provides that the law does not require “an employer to accommodate the medical use of marijuana in any workplace.”

The LAD prohibits employers from firing an employee or subjecting them to other adverse or disparate treatment because of a disability. The statute defines “disability” to include “physical…mental, psychological or developmental disabilit[ies]” that are “demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.” The definition of “debilitating medical condition” provided by CUMMA overlaps with the LAD’s definition of “disability” in numerous areas.

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New Jersey joined several other states in prohibiting hairstyle discrimination in late 2019 when the Legislature passed the “Create a Respectful and Open Workspace for Natural Hair Act,” also known as the CROWN Act. The new law adds a definition of “race” to the New Jersey Law Against Discrimination (NJLAD) that specifically includes hairstyles historically or traditionally associated with particular racial groups. Many workplaces maintain dress codes or grooming policies that, whether intentional or not, discriminate against Black workers, such as by placing an extra burden on them in terms of how they maintain their hair. New York City issued guidance about race discrimination based on hairstyles in early 2019, and versions of the CROWN Act became law in New York State and California in July. New Jersey race discrimination law thus served as a model for other states to follow.

The NJLAD bars employers from discriminating on the basis of race and multiple other factors. N.J. Rev. Stat. § 10:5-12(a). The statute identifies certain actions as discriminatory, including refusing to hire someone, firing someone or requiring them to retire, or barring them from consideration for employment based on a protected category. Discrimination in the “terms, conditions or privileges of employment” also violates the NJLAD. Id. This may include employment policies or practices that favor or disfavor one group over another, or that impose additional burdens on a group of employees without a reasonable business-related justification. These types of practices can violate laws like the NJLAD even in the absence of discriminatory intent.

New York City’s guidance on hairstyle discrimination, issued in February 2019, offers a useful overview of how it can violate antidiscrimination laws. The document describes various “hair textures [that] are common among people of African descent,” and discusses how people may choose particular hairstyles for “cultural,…personal, financial, medical, religious, or spiritual reasons.” It also describes “protective style[s], intended to maintain hair health.” Discriminatory workplace policies that prohibit many of these hairstyles are often based on “a widespread and fundamentally racist belief that [they] are not suited for formal settings.” Such policies usually derive from “white and European beauty standards.”

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Employers in New Jersey may no longer ask job applicants how much they made at their last job, thanks to a new law passed by the Legislature in June 2019 and signed by the Governor in July. The bill amends several provisions of New Jersey employment discrimination laws to prohibit employers from “screen[ing] a job applicant based on the applicant’s salary history.” Inquiries about salary history can offer employers a way around laws against pay discrimination, such as the federal Equal Pay Act (EPA). When an employer bases hiring or salary decisions on how much an applicant made at their previous job, it tends to perpetuate existing wage imbalances. As of December 2019, sixteen states, the District of Columbia, Puerto Rico, and multiple local governments have enacted laws prohibiting salary history inquiries to various degrees.

The EPA prohibits discrimination in pay on the basis of gender, meaning that employers must pay male and female employees the same for work that “requires equal skill, effort, and responsibility…under similar working conditions.” 29 U.S.C. § 206(d)(1). It makes exceptions for different rates of pay based on seniority, merit, “quantity or quality of production,” or “a differential based on any other factor other than sex.” Id. Bans on salary history inquiries are partly motivated by concerns that past salary could fit into that last category. The status quo in the United States in late 2019 is that multiple wage gaps exist. People can argue over what causes these gaps, but their existence is difficult to dispute. Employment decisions based on salary history, regardless of an employer’s intent, can serve to entrench the disparities.

State laws governing salary history inquiries vary widely in what they prohibit and allow. Alabama, for example, passed a law around the same time as New Jersey that bars employers from making an adverse employment decision based solely on an applicant’s refusal to provide information on their salary history. It does not expressly prohibit employers from asking for such information. California’s law, enacted in 2017, bars employers from asking, and goes much further. Employers in California may not “rely on the salary history information of an applicant for employment” in either hiring or salary decisions, unless the applicant voluntarily discloses the information.

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Workplace harassment on the basis of a protected category is considered unlawful employment discrimination under New Jersey law and throughout the country. Most people are familiar with how sexual harassment violates New Jersey employment discrimination laws, but it also applies to harassment based on race, religion, and other factors. The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., prohibits discrimination and harassment on numerous bases, as well as retaliation for opposing or reporting alleged unlawful practices. The Conscientious Employee Protection Act (CEPA), id. at § 34:19-1 et seq., protects the rights of whistleblowers who report suspected unlawful activity by their employers. A state employee filed suit in 2013 for race harassment and retaliation under the NJLAD and CEPA. In April 2019, a jury in Mercer County, New Jersey awarded him over $987,000 in damages.

The NJLAD prohibits employment discrimination on the basis of race and multiple other factors. See id. at § 10:5-12(a). This includes a wide range of adverse employment actions. Firing or refusing to hire a person because of their race is perhaps the most obvious sort of discriminatory act in violation of the NJLAD, but workplace discrimination takes far more forms than that. Pervasive and unwelcome actions that create a hostile work environment based on race also support an NJLAD claim.

Employers who “take reprisals against any person” who either opposes or reports alleged violations of the NJLAD commit a separate violation of the NJLAD, commonly known as retaliation. Id. at § 10:5-12(d). CEPA provides similar protections for employees who “[d]isclose[], or threaten[] to disclose” alleged legal violations by an employer, either to a supervisor or a government body. Id. at § 34:19-3(a). This may include reporting NJLAD violations.

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The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating on the basis of disability. It also requires employers to make “reasonable accommodations” for employees with disabilities, in order to enable them to perform their job duties. A New Jersey disability discrimination lawsuit originally filed in the Superior Court of Bergen County alleged failure to accommodate against a grocery store. The employee was bitten on the arm by a venomous spider while at work, resulting in hospitalization. He alleged in the lawsuit that the employer failed to accommodate the “anxiety and panic attacks” that arose because of the experience, and that he was fired in violation of the NJLAD. The parties settled the suit shortly after its removal to federal court.

The term “disability,” as defined by the NJLAD, includes “any mental [or] psychological…disability…which prevents the normal exercise of any bodily or mental functions.” N.J. Rev. Stat. § 10:5-5(q). Anxiety and panic disorders can be extremely debilitating for some individuals.

The Equal Employment Opportunity Commission (EEOC) issued a guidance document in 1997 that addressed whether anxiety may qualify as a disability under federal law. Its conclusions do not control New Jersey state courts applying the NJLAD, but they may still offer some useful guidance. The EEOC offered an example of an employee whose anxiety disorder affected their “ability to concentrate.” Legal antidiscrimination protections would be available, the EEOC concluded, if the impact of the anxiety disorder is “long-term or potentially long-term, as opposed to temporary.”

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While Title VII of the Civil Rights Act of 1964 is considered to be the primary federal antidiscrimination law, the Age Discrimination in Employment Act (ADEA) of 1967 also provides important protections for workers nationwide. Both the ADEA and New Jersey’s antidiscrimination statute prohibit employers from advertising job openings in ways that restrict eligibility on the basis of age. A pending federal class action against several major companies addresses a relatively new method of advertising. The lawsuit alleges that the defendants restricted the visibility of job advertisements on social media to users in certain age ranges. Several recent decisions by the Equal Employment Opportunity Commission (EEOC) support the plaintiffs’ position that this violates the ADEA’s advertising restrictions.

The ADEA’s protections against age discrimination apply to workers who are at least forty years old. 29 U.S.C. § 631(a). The New Jersey Law Against Discrimination (NJLAD), on the other hand, does not set a minimum age but states that employers may “refus[e] to accept for employment or to promote” a person who is more than seventy years old. N.J. Rev. Stat. § 10-5:12(a). Both statutes prohibit the publication of job advertisements that demonstrate “any limitation, specification or discrimination” based on age. 29 U.S.C. § 623(e), N.J. Rev. Stat. § 10:5-12(c). Job listings that only purport to limit the eligibility of minors typically do not violate these statutes, since minors are subject to separate work restrictions. A job advertisement stating that a job is only open to applicants between the ages of eighteen and forty would violate both the ADE and the NJLAD.

In July 2019, the EEOC issued determination letters to seven companies based on charges filed under the ADEA. All of the charges alleged unlawful posting of job advertisements on the social media platform Facebook, which allows companies to target advertisements to certain audiences. The EEOC reported that it found evidence that the companies “used language to limit the age of individuals who were able to view the advertisement.” It notified the companies that it had found “reasonable cause to believe that [they] violated the ADEA.”

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The Americans with Disabilities Act (ADA) of 1990 is a groundbreaking law that protects the rights of people with disabilities in the workplace and in many public businesses. Employers may not discriminate against employees or job applicants on the basis of a covered disability, and they may be required to provide “reasonable accommodations” to allow employees to perform their job duties. The statute also bars employers in many circumstances from requiring medical examinations, or making other inquiries regarding medical conditions. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on a disability discrimination claim that included alleged violations of the ADA provisions regarding reasonable accommodations and medical inquiries. The court reversed a lower court order dismissing those claims, allowing them to move forward. If you feel your employer is not providing reasonable accommodations in light of your medical condition, it may be to your advantage to contact a New Jersey disability discrimination attorney.

In order for a person to establish that they have a “disability” under the ADA, they must show that their impairment “substantially limits one or more major life activities,” or that they are “regarded as having such an impairment.” 42 U.S.C. §§ 12102(1)(A), (C). A “reasonable accommodation” might include physically modifying the work environment or making adjustments to work schedules. See id. at § 12111(9). An employer commits unlawful disability discrimination when, without establishing that doing so would “impose an undue hardship,” they fail to provide a reasonable accommodation to a qualified employee. Id. at § 12112(b)(5)(A).

Employers may not require employees to undergo medical examinations, nor may they inquire about employees’ medical history or medical conditions, except as specifically authorized by the statutes. The ADA specifically prohibits medical examinations or inquiries intended to determine whether an employee has a disability, or to ascertain “the nature or severity of the disability,” except when an employer can show that it is “job-related and consistent with business necessity.” Id. at § 12112(d)(4)(A).

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Race discrimination in employment can take many forms. Sometimes an employer commits an adverse act against an employee that is unambiguously based on that employee’s race, but it is usually that obvious. Employment policies that do not appear to be motivated by any sort of racial animus, can still have a substantially disproportionate impact on employees of certain races. Workplace dress codes and grooming standards, for example, can reinforce racial discrimination by placing undue burdens on people who identify as African American or Black. These policies often, without a clear business justification, prohibit Black employees from wearing their hair in certain common hairstyles, including natural hairstyles. New York City issued guidelines in early 2019 about hairstyle discrimination. The state legislatures in California and New York later enacted laws adding hairstyle discrimination to state law definitions of race discrimination. A bill currently pending in the New Jersey Legislature would make similar changes to the New Jersey Law Against Discrimination (NJLAD). If you are concerned that your hairstyle may be related to a dispute you are having at work, reach out to a New Jersey employment discrimination lawyer today.

Employment discrimination on the basis of race is prohibited under the NJLAD. N.J. Rev. Stat. § 10:5-12(a). The statute does not currently provide a definition for “race.” It relies on common usage, but even in everyday conversation, the word “race” is fraught with subtext. Dictionary definitions like “a category of humankind that shares certain distinctive physical traits” do not capture the full meaning of the term. New York City sought to address this lack of detail in its antidiscrimination law by focusing on hairstyle discrimination.

In February 2019, the New York City Commission on Human Rights (CHR) published guidelines on “race discrimination on the basis of hair.” It described this as “discrimination based on characteristics and cultural practices associated with being Black.” The term “Black,” as used by the CHR, includes people who identify as African or African American, as well as people with Afro-Caribbean and Afro-Latinx heritage. Workplace dress codes and grooming standards “are often rooted in white standards of appearance,” the CHR stated, and contribute to perceptions “that Black hairstyles are unprofessional.” Many such policies do not allow Black employees to maintain natural hairstyles. This requires them to undergo treatments to straighten their hair that are both expensive and damaging.

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