Employment Discrimination

March 3, 2023

Federal Budget Bill Includes New Legal Protections for New Jersey Workers Against Pregnancy Discrimination

The Consolidated Appropriations Act (CAA) of 2023 became law on December 29, 2022. The bill includes two new laws, originally introduced as separate bills, that address pregnancy discrimination in the workplace. While New Jersey employment law provides a rather wide range of protections for employees who are pregnant or have recently given birth, federal law is still catching up. These new laws address the physical needs and limitations that often accompany pregnancy and childbirth, which may require accommodations in the workplace. The Pregnant Workers Fairness Act (PWFA) prohibits discrimination based on “known limitations” associated with pregnancy or childbirth. The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act addresses the need for employees with newborns to have break time and a private location to express breast milk. Some provisions of the laws became effective immediately, while others will take effect later in 2023.

New Jersey Pregnancy Discrimination Law

Both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination on the basis of pregnancy, childbirth, and associated medical conditions. The NJLAD goes a step further than federal law by specifically requiring employers to make reasonable accommodations for pregnant employees, such as extra breaks for water or to use the restroom, modified work schedules, and lifting restrictions. At the federal level, the Americans with Disabilities Act (ADA) arguably provides this for at least some conditions related to pregnancy or childbirth, but it does not address reasonable accommodations in those specific contexts.

The NJLAD and the federal Fair Labor Standards Act (FLSA) both require employers to provide employees who are breastfeeding their children with a private location other than a restroom where they can express milk. Section 7(r) of the FLSA specifically states that employers are not obligated to pay employees for time spent exercising these rights.
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January 27, 2023

Choosing the Right Court for a New Jersey Employment Discrimination Lawsuit

by Resnick Law Group, P.C.

Federal and state laws limit where someone may file a lawsuit. The court must have the legal authority to hear the case and issue rulings affecting the defendant, known as jurisdiction. The location of the court, known as the venue, must have some connection to the events of the case or either of the parties. In many lawsuits, determining jurisdiction and venue is easy, such as when both parties are located in the same vicinity. New Jersey employment laws apply to employees, employers, and events in New Jersey. It can be more complicated when the events or the parties’ locations cross county or state lines. A recent decision by the Third Circuit Court of Appeals, for example, addressed an employment discrimination and retaliation lawsuit that involved events in both New Jersey and Connecticut.

The New Jersey Law Against Discrimination (NJLAD) bars New Jersey employers from discriminating against employees and job seekers on the basis of a wide range of factors. These include race, religion, sex, disability, and sexual orientation. The statute also prohibits retaliation by employers against employees who report unlawful acts, assist in investigations, or engage in other protected activities. At the federal level, Title VII of the Civil Rights Act of 1964 has similar provisions, although its protections against workplace discrimination are not as broad.

Both of these statutes provide guidance on where employees may file a lawsuit. Title VII states that an individual may file a lawsuit in U.S. district court in the district where:
– The alleged violation occurred;
– Relevant employment records are located;
– The individual would have worked had the unlawful act not occurred; or
– The employer’s main office is located.
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January 20, 2023

What the Federal Pardons for Cannabis Possession Could Mean for New Jersey Employees

by Resnick Law Group, P.C.

The legal status of cannabis has gone through a number of changes in recent years, at least at the state level. Cannabis remains illegal under federal law. Medical use of cannabis has been legal under New Jersey law, however, for over a decade. A state law allowing limited possession and use for recreational purposes took effect in 2021. These changes impact New Jersey employment laws with regard to issues like mandatory drug testing, drug-free workplaces, and the use of a now-legal substance by employees outside of work hours. In October 2022, the White House announced that the president would be issuing pardons for people with federal convictions for simple cannabis possession. This raises questions about how New Jersey and federal laws relating to the use of criminal history in employment decisions will affect pardoned workers.

New Jersey Criminal History Discrimination

Criminal history is not a protected category under federal or state employment discrimination laws. Workers who have arrest or conviction records do, however, have some protection during the job application process. Many employers have tried to screen applicants with criminal records, even if an applicant’s particular history would have no bearing on the job they are seeking. This makes it all but impossible for thousands of people to find work.

Under the Opportunity to Compete Act (OTCA), New Jersey employers may not ask job applicants about criminal history at the beginning of the hiring process. The statute allows employers to make inquiries about criminal history once an applicant has completed an initial interview. Exceptions apply for certain jobs, such as law enforcement or professions where another state or federal law requires a criminal background check.
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October 28, 2022

Interim Guidelines Address Employment Protections in New Jersey Cannabis Law

by Resnick Law Group, P.C.

Since early 2021, New Jersey employment law has protected workers in this state from discrimination or other adverse employment actions based on their use of cannabis outside work, as well as their refusal to engage in cannabis use. Employers may still prohibit the use of cannabis in the workplace, and they may take reasonable measures to prevent employees from working while under the influence of cannabis. State law limits the use of drug testing by employers, but the New Jersey Cannabis Regulatory Commission (NJCRC) still has not issued final guidelines on this part of the law. It issued extensive guidelines in September 2021 that did not address employment issues. One year later, the NJCRC issued interim guidance on employment, which offers some direction on workplace drug testing.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in February 2021. Section 48 of CREAMMA, codified as § 24:6I-52 of the New Jersey Revised Statutes, addresses cannabis in the workplace. It prohibits discrimination based on an employee’s or job applicant’s cannabis use, or lack thereof. If an employee tests positive for cannabinoid metabolites because of cannabis use that is legal under CREAMMA, their employer may not take adverse action against them solely on that basis.

The statute allows employers “to maintain a drug- and alcohol-free workplace,” such as by not allowing employees to be under the influence of cannabis during work hours. Employers may require their employees to submit to drug tests under certain circumstances:

October 14, 2022

EEOC Files Age Discrimination Lawsuit Against New Jersey Employer

by Resnick Law Group, P.C.

Age discrimination can affect almost any New Jersey employee, although it occurs most often among older workers who find themselves passed over in favor of younger individuals. Both federal and state employment laws prohibit discrimination on the basis of age to varying degrees. The Equal Employment Opportunity Commission (EEOC) filed suit earlier this year against a New Jersey employer on behalf of a 62-year-old woman. The complainant alleges that her employer passed her over for a lateral transfer in violation of the federal Age Discrimination in Employment Act (ADEA). The lawsuit, which is pending in the U.S. District Court for the District of New Jersey, seeks back pay and other damages for the complainant, as well as policy changes and other injunctive relief. If you feel you are the victim of age discrimination in the workplace, please reach out to a New Jersey employment lawyer to discuss your options.

The New Jersey Law Against Discrimination (NJLAD) provides extensive protection against workplace age discrimination. It applies to almost all employers, regardless of the number of employees. It does not limit its protections to workers of any particular age, as long as they are adults. A qualified 20-year-old who lost out on an opportunity because of the perception of being “too young” could assert a claim under the NJLAD, as could a qualified 70-year-old who was passed over for being “too old.”

Federal law’s protections against age discrimination are not as broad as those provided by the NJLAD. The ADEA applies to employers with at least twenty employees and workers who are forty years old or older. Its protections are essentially limited to discrimination based on someone being perceived as “too old.” The 70-year-old described above could assert a claim under the ADEA if they work for a large enough employer. The 20-year-old could not, though.
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September 23, 2022

Updated COVID-19 Guidance for New Jersey Employers

by Resnick Law Group, P.C.

The COVID-19 pandemic has presented numerous employment law challenges. Employers, employees, government regulators, and others have had to balance financial needs, public health, and workplace safety. The Centers for Disease Control and Prevention (CDC) has issued various guidelines related to testing and isolation. The Equal Employment Opportunity Commission (EEOC) has addressed questions about what employers may require of their employees under laws like the Americans with Disabilities Act (ADA). These agencies have modified their guidelines as our knowledge about the coronavirus has increased, and as pandemic conditions have changed. Recent updates present relaxed standards for workplace safety, mandatory COVID testing, and other matters. New Jersey employees should be aware of their rights under both federal and state laws. If you have questions about COVID-19 guidelines at your workplace, please contact a New Jersey employment lawyer to discuss.

EEOC guidance on testing

On July 12, 2022, the EEOC updated the guidance document entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” One of the main issues the document addresses is whether the ADA allows employers to require COVID-19 testing among employees. Generally speaking, the ADA requires any medical examinations or inquiries by employers to be “job-related and consistent with business necessity.” A medical condition that presents a “direct threat” to others in the workplace usually meets this requirement.

In the early days of the pandemic — particularly before a vaccine became widely available — the EEOC concluded that mandatory testing was acceptable because of the broad risk posed by exposure to the coronavirus. Much has changed since 2020. The agency has modified its interpretation of “business necessity” in light of improved public health measures, while also considering the ongoing mutation of the virus.
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September 7, 2022

New Jersey Updates Posters Outlining Antidiscrimination and Family Leave Laws

by Resnick Law Group, P.C.

New Jersey’s employment laws offer a wide range of protections for workers, including the right to paid or unpaid family leave in certain circumstances, and the right to recover remedies from employers who engage in unlawful discrimination or retaliation. In order for workers to benefit from these laws, they need to know about their rights. New Jersey employment attorneys can provide employees with everything they need to know about their legal rights, but the state wants people to know before anyone feels the need to contact a lawyer. The New Jersey Division on Civil Rights (DCR) recently adopted new regulations that require employers to provide their employees with a poster advising them of their rights under two state statutes, the New Jersey Law Against Discrimination (NJLAD) and the Family Leave Act (FLA).

The NJLAD is one of the most comprehensive anti-discrimination statutes in the country. It prohibits discrimination in hiring, firing, promotions, job duties, benefits, and other features of employment on the basis of a long list of factors. Protected categories include race, religion, age, disability, national origin, sex, sexual or affectional orientation, gender identity or gender expression, pregnancy, breastfeeding, and military service, to name a few. The statute requires employers to make reasonable accommodations for certain conditions, including many types of disability, pregnancy, and breastfeeding. It also prohibits employers from retaliating against employees who object to allegedly unlawful practices or report their concerns.

New Jersey is also one of only a few U.S. states to provide paid family leave for some employees. The FLA provides up to twelve weeks of protected leave during a 24-month period to care for a sick or injured family member or to bond with a newborn or newly-adopted child. The leave may be unpaid or partially paid. The employee may take twelve weeks of leave all at once, or they may break it up over time. Employees may be eligible for leave if their employers employ at least thirty people worldwide. An employee must have worked for the employer for at least a year, and they must have worked at least 1,000 hours in the preceding twelve-month period.
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August 12, 2022

New Jersey Appellate Division Allows Discrimination and Retaliation Lawsuit to Proceed

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination in numerous areas of life, including employment and education. Claims involving discrimination in educational environments are often quite similar to New Jersey workplace discrimination claims. While they might involve alleged acts by teachers, professors, coaches, or administrators rather than supervisors or managers, the standards of evidence are the same or very similar. New Jersey courts have recognized claims that allege hostile educational environments using the same test applied to hostile work environment claims. The New Jersey Appellate Division recently affirmed a lower court order denying a university’s motion for summary judgment in a lawsuit by former students alleging a hostile educational environment under the NJLAD. Notably, the claim alleges harassment of a group rather than individuals.

The NJLAD identifies race, sex, and sexual orientation as protected categories in the workplace. Employers may not discriminate on the basis of these and other factors, which may include subjecting one or more employees to harassment or a hostile work environment. The New Jersey Supreme Court described a four-part test for identifying a hostile work environment in a 1993 decision: The alleged conduct (1) only occurred because of the employee’s sex or membership in another protected category, and (2) it was so “severe or pervasive” that (3) a reasonable person belonging to the same protected category would conclude that (4) the conduct has changed the “conditions of employment” and rendered the “working environment…hostile or abusive.” The decision specifically involved sexual harassment, but New Jersey courts have since applied this test to claims involving alleged hostile work and educational environments based on other factors as well.

When assessing claims alleging hostile work environments or hostile educational environments, courts must consider how multiple acts of harassment or hostility may affect someone over time. In a 2003 decision, the New Jersey Supreme Court addressed the need to look at the “cumulative [e]ffect of individual acts,” rather than each alleged act in isolation.

June 27, 2022

Gender Discrimination Lawsuit Accuses Hospital of Wrongful Termination, Retaliation

by Resnick Law Group, P.C.

Discrimination on the basis of gender and various other factors violates federal and state employment laws in New Jersey. Employers may not take adverse actions against employees, ranging from shunning or isolating them to terminating them, based primarily on their gender or sex. They also may not retaliate against an employee for reporting concerns about gender discrimination in the workplace. A lawsuit filed in late 2021 alleges that a hospital discriminated against a doctor because of her gender and retaliated against her for opposing such practices. She alleges that the hospital eventually fired her for discriminatory and retaliatory reasons. If you feel you are the victim of retaliation or wrongful termination, contact a New Jersey employment lawyer to discuss your situation.

The New Jersey Law Against Discrimination (NJLAD) protects employees and job seekers from discrimination based on numerous factors, including sex. It prohibits retaliation for opposing or complaining about allegedly unlawful practices. It also allows workers to bring civil claims for aiding and abetting violations. At the federal level, Title VII of the Civil Rights Act of 1964 protects a smaller number of categories against discrimination, but the list includes sex. It also includes provisions barring retaliation.

The plaintiff in the lawsuit described above worked for a hospital affiliated with a major research university. According to her complaint, she entered into a two-year employment arrangement with the hospital as an Instructor in Surgery in December 2017. She describes her performance at the hospital as “stellar,” stating that she received “outstanding patient satisfaction scores” and various honors, including a Junior Faculty Award in 2019. She reportedly received a grant from the National Institutes of Health (NIH) in early 2019 that would have covered half her salary and funded much of her research. She allegedly could not participate in the grant program, however, because of the “relentless sexism” of her supervisor.
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June 13, 2022

New Jersey Veterinarian Sues Employer for Pay Discrimination

by Resnick Law Group, P.C.

Federal and state employment laws in New Jersey require equal pay for workers in highly similar jobs in various circumstances. The federal Equal Pay Act (EPA) specifically addresses equal pay in terms of sex discrimination. New Jersey’s Diane B. Allen Equal Pay Act (NJEPA), on the other hand, takes on pay discrimination on the basis of any protected category under the New Jersey Law Against Discrimination (NJLAD), which is a rather long list. Equal pay claims based on sex discrimination are among the most common type of claim. A federal lawsuit filed in early 2022 in New Jersey alleges pay discrimination based on sex under both federal and state law. If you feel you may be the victim of pay discrimination, it is important that you reach out to a New Jersey employment lawyer to discuss your situation.

The EPA, codified at 29 U.S.C. § 206(d), states that employers may not discriminate based on sex when employees of one sex receive higher pay for “equal work” that “requires equal skill, effort, and responsibility…under similar working conditions.” Male and female employees working in the same position, with similar levels of education, training, or skill, should receive the same amount of pay in most circumstances. The EPA allows exceptions for systems based on merit, seniority, “quantity or quality of production,” or other factors that are not based on employees’ sex. Employers may not reduce any employee’s pay in order to comply with the law.

The NJEPA, found at N.J. Rev. Stat. § 10:5-12(t), is similar to the EPA in the protections it offers. It is not limited to pay discrimination on the basis of sex. Other categories protected under the NJLAD include race, religion, sexual orientation, gender identity or expression, pregnancy, and disability. The state law also allows exceptions for merit- or seniority-based systems, but its standard for other factors is arguably stricter than that of the EPA. An employer must show that the pay difference is solely based on factors other than sex, that it does not perpetuate pay discrimination based on any protected category, that the employer applies these factors “reasonably,” and that the factors are both “job-based” and “based on a legitimate business necessity.”
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