Articles Posted in Employment Discrimination

When an employee begins working for an employer, they are often required to sign an employment agreement that establishes numerous features of the employer-employee relationship. Most provisions involve standard matters like job expectations, wages, and termination of the employment relationship. Employment agreements may also include provisions for nondisclosure of various types of information, as well as waivers of certain rights. When employers and employees enter into settlement agreements to resolve disputes, an employer may seek a nondisclosure clause as well. Provisions like these may hinder individuals’ ability to assert their rights under employment statutes like the New Jersey Law Against Discrimination (NJLAD). At least partly in response to increased attention on sexual harassment in the workplace, the New Jersey Legislature enacted a bill in January 2019 that amends the NJLAD to prohibit enforcement of certain nondisclosure agreements, as well as waivers of rights under the NJLAD or similar statutes.

The NJLAD prohibits employers from discriminating against employees on the basis of race, religion, sex, age, sexual orientation, gender identity or expression, and many other factors. Courts have held that prohibitions on sex discrimination in the NJLAD and other laws cover sexual harassment, as well as harassment based on other protected factors. Unlawful harassment generally includes two scenarios: (1) acquiescence to or tolerance of harassing behavior, including sexual advances, is made a condition of employment; and (2) pervasive and unwelcome harassing behavior creates a hostile work environment that interferes with an individual’s ability to perform their job duties.

The #MeToo movement has allowed people all over the country to come forward with their own experiences, when many of them might have been afraid to do so before. Nondisclosure agreements (NDAs) in discrimination and harassment cases may prevent people with similar experiences from sharing their stories. Last year, California and New York enacted limits on NDAs in situations involving alleged sexual harassment. California now prohibits NDAs that purport to “prevent[] the disclosure of factual information related to a” lawsuit or administrative complaint alleging sexual harassment. New York now has similar provisions in its laws barring NDAs in settlements and other resolutions of sexual harassment disputes.
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New Jersey is among the more than half of all U.S. states that allows the possession and use of small amounts of marijuana for medical purposes, under the supervision of a physician. Recreational use is still prohibited by state law, and federal law still prohibits possession and use for any purpose. Conflicts among various laws have led to much confusion. The New Jersey Superior Court, Appellate Division recently ruled on how this state’s marijuana laws affect employment discrimination laws. The court reversed the dismissal of a lawsuit brought by an individual whose cancer treatment plan included a medical marijuana prescription. The plaintiff alleged that his former employer fired him in violation of state laws prohibiting disability discrimination. Published Decision (the “Decision”).

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of factors like race, religion, sex, and disability. N.J. Rev. Stat. § 10:5-12(a). It defines the term “disability” to include “physical disability [or] infirmity…which is caused by…illness.” Id. at § 10:5-5(q). This includes many the physical and other symptoms caused by many forms of cancer.

A plaintiff alleging disability discrimination under the NJLAD must prove four elements:
1. The employee had a disability, or the employer perceived the employee as having a disability;
2. The employee was still qualified to perform, and was still performing, “the essential functions of the job”;
3. The employee suffered “an adverse employment action” because of the actual or perceived disability; and
4. The employer “sought a similarly qualified individual” to replace the employee.
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Technology is constantly providing new ways to help both employers and employees in New Jersey. Unfortunately, sometimes a technology that helps employers does so at employees’ expense. Our legal system can be slow to catch up with new innovations. Fitness trackers, which are devices individuals can wear to track movement and other vital statistics, are becoming more and more common. Many employers have taken notice of this. A recent Washington Post article describes fitness trackers as “an increasingly valuable source of workforce health intelligence for employers.” Employers’ access to, and use of, employees’ fitness tracker data raises concerns about privacy. In some cases, it could raise concerns about employment discrimination. Federal and New Jersey employment laws prohibit discrimination on a wide range of factors, and protect privacy in certain areas. Opinions are mixed on the extent to which they cover fitness tracker data.

Arguably, employers use employee fitness tracker data to monitor performance. The devices record information about an employee’s movement, or lack thereof. This could be relevant to job performance, but it could also present problems. The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees and job applicants on the basis of disability. N.J. Rev. Stat. § 10:5-12(a). The statute defines this term very broadly, covering a wide range of physical and mental conditions that “prevent[] the normal exercise of any bodily or mental functions.” Id. at § 10:5-5(q). At the federal level, the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008, also prohibits employment discrimination. This statute’s definition of “disability” includes both actual and perceived disabilities. See 42 U.S.C. §§ 12102(1)(C), 12112.

State and federal antidiscrimination law also prohibit discrimination by employers based on genetic information. This could be an issue for employers using fitness tracker data in some situations. The NJLAD defines “genetic information” as “information about genes, gene products or inherited characteristics.” N.J. Rev. Stat. § 10:5-5(oo). The plain language of the statute suggests that the information does not have to come from a genetic test ordered by the employer. The federal Genetic Information Nondiscrimination Act (GINA) focuses more specifically on genetic testing. It defines “genetic information” as information derived from a person’s genetic test or that of a family member, or “the manifestation of a disease or disorder” in a member of that person’s family. 42 U.S.C. §§ 2000ff(4)(A), 2000ff-1(a).
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The technology industry is gaining prominence in New Jersey. A list of the five hundred fastest-growing tech companies from last year included sixteen New Jersey companies. A strong tech industry can bring many benefits to state and local economies, but the tech industry also has its share of problems. The industry’s struggles with age and gender discrimination have received a great deal of media attention. A common feature in the tech industry that does not receive as much attention, in the context of employment law, is the expectation that employees work long hours. Despite research suggesting that longer hours do not translate into greater productivity or value, numerous industries continue to view working far in excess of forty hours per week as both a rite of passage and an ongoing necessity. It may also, according to some critics, be a form of New Jersey disability discrimination.

The New Jersey Law Against Discrimination (NJLAD) and the federal Americans with Disabilities Act (ADA) prohibit employment discrimination on the basis of disability. N.J. Rev. Stat. § 10:5-12(a), 42 U.S.C. § 12112(a). The ADA defines a disability in very general terms as a “physical or mental impairment” that impedes a person’s “major life activities.” 42 U.S.C. § 12102(1). Employers must make “reasonable accommodations” for employees with disabilities, defined to include both modifications for physical accessibility and modifications to shift schedules or job duties. Id. at § 12111(9).

The popular perception of a “disability” in the workplace probably involves a person with impaired mobility, or who is otherwise unable to perform some physical aspect of a job, such as lifting heavy objects. This is far from the only type of disability. Impairments affecting eyesight or hearing, for example, could qualify as a disability under the ADA. Chronic illnesses that affect energy levels of energy can also be considered disabilities. People who experience ongoing fatigue because of a medical condition may not be able to work more than forty hours per week, let alone eighty or more hours. The tech industry reportedly does not track disability among its employees, so it is difficult to know the extent of the issue.
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Wage disparity is an important—and controversial—topic in American politics. Women, on average, tend to make less than men. The same is often true for people of color as compared to White employees. Some lawmakers and officials at the local and state level are looking at ways that employers, intentionally or not, may perpetuate wage gaps through inquiries into job applicants’ salary histories. Such inquiries may make it difficult for job applicants to negotiate salaries that break from historical patterns of wage disparity. Bans on employer salary history inquiries are becoming more common around the country. Statutes focused on New Jersey employment law do not prohibit such inquiries by private employers, but a 2018 executive order prohibits them among state offices and agencies. Earlier this year, Suffolk County, New York became the latest local government to enact a salary history ban. A few states, such as Wisconsin and Michigan, have gone in a different direction by barring local governments from enacting bans of their own.

New Jersey Governor Phil Murphy signed Executive Order #1 on January 16, 2018, in his first official act after he took the oath of office. The text of the order notes that women in New Jersey receive wages of eighty-two cents for every dollar paid to men in full-time jobs, and that this gap appears regardless of industry or education level. These disparities are even more pronounced when the full-time wages of African-American and Latina women are compared to those of White men in New Jersey—fifty-eight cents and forty-three cents, respectively. The order declares that New Jersey workers “should be compensated based on the nature of the work and services they provide.”

The order took effect on February 1 of last year. It prohibits state entities from inquiring about salary history, including both direct inquiries to job applicants and independent investigations, until a conditional offer of employment has been made. Applicants may voluntarily provide information, but may not be required to do so. If a state entity already has information about an applicant’s salary history, it may not consider that information when making a hiring decision, unless a statute or collective bargaining agreement requires it to do so. The executive order does not create a private cause of action for aggrieved job applicants, but does empower the governor’s office to investigate claims “and take appropriate remedial measures.”
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Federal antidiscrimination laws prohibit a wide range of acts by employers and others that have adverse effects on members of protected groups. This protection is not limited to overtly discriminatory behavior. The Civil Rights Act of 1964 also prohibits practices that have a disparate impact on protected groups, even when those practices appear neutral on their face or do not appear to have discriminatory intent. This applies to employment, housing, and other areas. An employer’s intent is not the most important factor when assessing whether an action, policy, or practice is discriminatory. A recent report on an internal memorandum at the U.S. Department of Justice (DOJ) suggests that the current administration is considering rolling back regulatory prohibitions on disparate impact discrimination. While the memorandum reportedly refers to Title VI cases, not Title VII, any rollbacks in other areas of antidiscrimination regulations are likely to have an effect on New Jersey employment discrimination claims, as well as nationwide.

The most important U.S. Supreme Court decision on disparate impact discrimination in employment is Griggs v. Duke Power Co., 401 U.S. 424 (1971). A group of African-American employees alleged that the defendant violated Title VII by requiring candidates for transfer or promotion within the company to have a high school diploma or pass “a standardized general intelligence test.” Id. at 426. The Supreme Court agreed with the plaintiffs. It found that, while the defendant’s policy appeared neutral with regard to race, it was not “significantly related to successful job performance” and had the effect of discriminating against African-American employees. Id. The Supreme Court has also rejected a “bottom line” defense, in which an employer argued that they should not be held liable if a discriminatory practice happens not to have an overall adverse impact in the balance of employees. Connecticut v. Teal, 457 U.S. 440 (1982).

Several federal agencies have adopted a set of standards known as the Uniform Guidelines for Employee Selection Procedures in their regulations. This includes the DOJ and the Equal Employment Opportunity Commission (EEOC). See 28 C.F.R. § 50.14, 29 C.F.R. pt. 1607. Under these guidelines, a selection rate in hiring or promotion for a protected category like race or sex that “is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate” is considered evidence of disparate impact discrimination. 28 C.F.R. 50.14(4)(D), 29 C.F.R. § 1607.4(D). Both the DOJ and the EEOC raise claims of disparate impact in civil enforcement actions.
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New Jersey employment laws prohibit discrimination in the workplace on the basis of numerous factors. The New Jersey Law Against Discrimination (NJLAD) offers protection to more categories than its federal counterpart, Title VII of the Civil Rights Act of 1964, although other federal statutes cover areas that are omitted from Title VII. The Age Discrimination in Employment Act (ADEA) of 1967, for example, protects older employees from various adverse employment actions based on their age. New Jersey law tends to offer broader protection in this area as well, without the lower age limit found in the ADEA. A putative class action currently pending in a New York City federal court asserts claims for age discrimination under the ADEA and several state statutes. Rusis, et al v. Int’l Business Machines Corp., No. 1:18-cv-08434, complaint (S.D.N.Y., Sep. 17, 2018).

The term “age discrimination” principally refers to adverse employment actions against older individuals, and in favor of younger individuals. The ADEA expressly limits its protections to people who are forty years old or older. 29 U.S.C. § 631(a). The statute prohibits various discriminatory acts and disparate treatment against protected individuals because of their age. As long as a person meets the ADEA’s age criterion, however, it is possible for them to bring a claim for discrimination against younger employees in favor of older ones. The statute allows exceptions in situations “where age is a bona fide occupational qualification.” Id. at § 623(f)(1). The NJLAD does not set a minimum age for protection against age discrimination. See N.J. Rev. Stat. § 10:5-12. An individual must, however, be at least eighteen years old—i.e. not subject to child labor laws—to assert a claim.

The allegations in the Rusis lawsuit follow the familiar scenario of discrimination against older workers in favor of younger ones. This scenario seems to be particularly common in the tech industry, which is often alleged to favor youth among job applicants, and to believe that older workers are less likely to be familiar with newer technologies. According to the plaintiffs’ complaint, the defendant began laying off employees in 2012 in an effort to recruit younger workers. It has allegedly laid off as many as twenty thousand people over the age of forty since then. The plaintiffs claim that the defendant has actively recruited among the age group commonly known as “Millennials,” which they say the company defines as people born after 1980, in an effort “to make the face of [the defendant] younger.” Rusis, complaint at 4.
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Federal and New Jersey employment statutes prohibit discrimination against employees on the basis of pregnancy, childbirth, and conditions related to either, but these legal protections have omitted some aspects of the pregnancy and childbirth process. Pregnant workers and workers who have recently given birth often need accommodations in the workplace. The specific needs of breastfeeding employees have long been omitted from both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD). In early 2018, however, the New Jersey governor signed a bill, A2294, amending the NJLAD to provide express protections against discrimination based on breastfeeding, and to require certain reasonable accommodations. The federal Fair Labor Standards Act (FLSA) makes some provision for reasonable accommodations in this context, but only provides for unpaid time.

The Pregnancy Discrimination Act of 1978 amended Title VII’s definition of discrimination “on the basis of sex” to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The NJLAD identifies pregnancy as a distinct protected category alongside factors like sex, race, and religion. N.J. Rev. Stat. § 10:5-12(a). It goes further, stating that employers may not treat employees that they know, or should know, are pregnant differently than non-pregnant employees as long as the employees are capable of performing similar work. Id. at § 10:5-12(s).

Even before the amendments in A2294, the NJLAD went further than federal law, requiring employers to provide certain accommodations to pregnant workers reflecting the need for rest, water intake, restroom usage, lifting restrictions, and schedule modifications. Id. Title VII does not include any provisions for such reasonable accommodations, although the Americans with Disabilities Act may provide some assistance. The ADA Amendments Act of 2008 applies a broader definition of disability that, while not expressly mentioning pregnancy, could include some conditions related to pregnancy. See 29 C.F.R. Appendix to § 1630.2(h).
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A group of former male employees of a high-end Manhattan department store have filed a lawsuit alleging race and age discrimination against the store and its corporate parent. They claim that they were subjected to a hostile work environment because of their age or race, or both in some cases, and that the defendant unlawfully terminated their employment. Although the lawsuit is pending in a New York court, federal and New Jersey antidiscrimination laws provide a helpful comparison of varying levels of protection against age discrimination. New Jersey’s antidiscrimination statute provides broader protections than its federal counterpart.

Federal and state law provide a similar range of protections against race discrimination. Title VII of the Civil Rights Act of 1964, a federal statute, prohibits employment discrimination on the basis of race and color, as well as religion, national origin, and sex. 42 U.S.C. § 2000e-2(a). The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of numerous factors, including race, color, national origin, and ancestry. N.J. Rev. Stat. § 10:5-12(a).

New Jersey law and federal law differ in the extent to which they address age discrimination. The Age Discrimination in Employment Act (ADEA), a federal statute, only applies to individuals who are forty years old or older. 29 U.S.C. § 631(a). It prohibits discrimination by employers based on age, using language similar to that found in Title VII. Id. at § 623(a). The statute allows exceptions, such as in cases of people who work in “a bona fide executive or a high policymaking position,” are at least sixty-five years old, and meet other criteria related to employment benefits. Id. at § 631(c).
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Employment discrimination on the basis of genetic information is an important area of law that has not received as much attention as other forms of discrimination. This is partly because the laws protecting against genetic information discrimination have not been on the books very long. At the federal level, the Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits various types of discrimination in employment and health insurance. The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination by employers based on specific genetic traits. This area of law is likely to gain prominence as a wider range of genetic information becomes available. Multiple companies conduct genetic testing to provide genealogy information to consumers. They are then able to use those consumers’ genetic information in a variety of ways that are not well understood. Privacy laws and consumer contracts are likely to play as important a role as employment statutes in New Jersey and around the country. If you have questions of this nature, reach out to a New Jersey employment discrimination attorney.

GINA defines “genetic information” as information obtained from “genetic tests” of an individual or their family members, or from “the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C. § 2000ff(4)(A). It defines a “genetic test” as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites,” provided that it is able to “detect genotypes, mutations, or chromosomal changes.” Id. at § 2000ff(7). The statute prohibits discrimination by employers based on genetic information, using language that is similar to the prohibitions on employment discrimination found in Title VII of the Civil Rights Act of 1964. Id. at §§ 2000ff-1(a), 2000e-2(a).

Under the NJLAD, an employer commits an “unlawful employment practice” if they discriminate on the basis of an “atypical hereditary cellular or blood trait of any individual,” or an individual’s “refusal to submit to a genetic test or make available the results of a genetic test to an employer.” N.J. Rev. Stat. § 10:5-12(a). The statute specifically identifies the following traits: “sickle cell trait, hemoglobin C trait, thalassemia trait, Tay-Sachs trait, or cystic fibrosis trait.” Id. at §§ 10:5-5(x)-(cc). Its definition of “genetic test” is similar to the one found in GINA. Id. at § 10:5-5(pp).
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