Articles Posted in Employment Discrimination

The U.S. Supreme Court’s recent ruling in Students for Fair Admissions v. Harvard made significant changes to how many colleges and universities will handle their admissions processes. The court essentially found that race-based affirmative action programs violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. This has led to questions about whether the ruling could affect New Jersey employment discrimination claims that rely on Title VII of that statute. It is possible that the Harvard decision will impact how employers approach recruitment, particularly with regard to diversity, equity, and inclusion (DEI) efforts. This could affect broader patterns in hiring, but it is too early to say how — or if — the decision will impact individual hiring decisions.

Title VII prohibits discrimination on the basis of five broad categories: race, color, sex, religion, and national origin. Statutes and Supreme Court decisions have expanded the definitions of some of these terms. For example, the Pregnancy Discrimination Act of 1978 added discrimination based on pregnancy and childbirth to the definition of sex discrimination. The Supreme Court’s 2020 ruling in Bostock v. Clayton County held that sex discrimination under Title VII includes discrimination based on sexual orientation or gender identity.

The Harvard ruling specifically addresses claims of discrimination on the basis of race under Title VI. Over the years, the Supreme Court has identified numerous forms of workplace race discrimination that violate Title VII. This includes both overt and subtle forms of discrimination. In 1971, the court ruled in Griggs v. Duke Power Co. that an employer can violate Title VII even if it had no intent to discriminate based on race. The case involved an employment policy that had a disparate impact on Black job applicants. The aspects of the policy that created the disparity had no reasonable relationship to job duties or performance.
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In New Jersey, employment laws prohibit workplace discrimination on the basis of factors like sex, race, religion, disability, age, sexual orientation, and gender identity, to name but a few. This state was ahead of many other states in adding the latter two categories to its anti-discrimination statute. At the federal level, the Equal Employment Opportunity Commission (EEOC) determined some time ago that discrimination based on sex includes sexual orientation and gender identity discrimination. This conclusion, however, did not have the force of law. Federal anti-discrimination law did not include these categories until the U.S. Supreme Court reached essentially the same conclusion as the EEOC in 2020. Earlier this year, the EEOC published an article tracing the history of LGBTQI+ rights in the workplace and discussing best practices for employers under federal law.

According to the EEOC, only twenty-two states and the District of Columbia have employment laws that specifically prohibit discrimination based on sexual orientation or gender identity. New Jersey is among them. Significant improvements in LGBTQI+ rights probably began in 1973, when the American Psychiatric Association (APA) removed “homosexuality” from its list of psychiatric disorders. Two years later, Pennsylvania enacted the first state law against sexual orientation discrimination in employment. New Jersey followed with an amendment to the New Jersey Law Against Discrimination (NJLAD) in 1991.

A 2006 amendment to the NJLAD added “gender identity or expression” to the list of protected categories. New Jersey was actually ahead of the APA in this case. The organization did not remove “gender identity disorder” from its manual until 2012, replacing it with the diagnosis of “gender dysphoria.” Both the New Jersey Legislature and the APA remained ahead of the federal government on these issues.
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Artificial intelligence (AI) has received a large amount of media coverage recently, largely due to applications that use AI to create visual or written works. Businesses have been using AI tools for a variety of purposes for some time, including the hiring process. Since AI is a relatively new technology, New Jersey employment laws have not caught up to many of its latest functions. The Equal Employment Opportunity Commission (EEOC) has taken notice of numerous risks posed by AI, including implicit bias in hiring. Last year, it issued guidance regarding the use of AI as a decision-making tool. It joined with several other federal agencies in April 2023 to issue a joint statement about potential legal liabilities from relying on AI. A bill pending in the New Jersey Legislature would regulate AI tools that could contribute to employment discrimination. A similar law is set to take effect in New York City in July.

Multiple state and federal statutes prohibit discrimination in hiring, firing, and other features of employment based on certain factors. The New Jersey Law Against Discrimination (NJLAD) specifically protects workers against discrimination on the basis of race, religion, sex, sexual orientation, gender identity, disability, age, genetic information, and other protected categories. Federal laws like Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (ADA) of 1990 also deal with workplace discrimination.

Discrimination does not have to be overt or intentional to violate the law. The U.S. Supreme Court has held that employment policies or practices are unlawful if they have a discriminatory impact. Much of the concern over the use of AI in hiring decisions stems from the fact that it might use data from past hiring practices to guide decisions in the present. This can lead to disparate impact discrimination, even if no one intended to discriminate.
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The New Jersey Legislature passed a law in 2021 that legalizes the recreational use of cannabis. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) protects employees against adverse actions by their employers based on legal cannabis use. While the state has issued guidelines that address how employers should handle issues like impairment in the workplace, many aspects of the new law’s employment protections have yet to be tested in the courts. A New Jersey federal court recently ruled in favor of a plaintiff who has alleged wrongful termination by his employer in violation of CREAMMA, denying the defendant’s motion to dismiss.

The employment provisions of CREAMMA attempt to balance employees’ legal rights with employers’ interest in maintaining drug-free workplaces. Employers may not refuse to hire someone because they engage in legal cannabis use, nor may they fire them or take other adverse actions against them for that reason. Employees also have the right to refuse to engage in activities that are legal under CREAMMA. Drug testing by employers is allowed under certain circumstances. Employers may require that employees abstain from legal cannabis use and not be under the influence of cannabis during work hours. With some exceptions, though, they cannot prohibit lawful use outside of work.

The lawsuit described above arose from an automobile accident in late 2021 involving the plaintiff, who was driving a company vehicle at the time. According to the court, the plaintiff was not under the influence of cannabis or any other substance, nor did anyone suspect that he was. The employer required the plaintiff to submit to a drug test as a standard part of its safety policy. The plaintiff claims that, prior to the drug test, he alerted the employer about cannabis use outside of work about two weeks earlier. The test was positive for cannabis, resulting in the plaintiff”s immediate suspension.
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Disability discrimination is unlawful under both federal and state laws. Employers may not refuse to hire a job applicant because of a disability, nor may they fire, demote, refuse to promote, or deny various other employment features to an employee. Federal and state laws apply these protections both to individuals with qualifying disabilities and individuals who are perceived as having a disability. A plaintiff asserting a claim for damages under New Jersey employment law has the burden of proving that their employer based their discriminatory act or acts on a qualifying disability. In a case involving perceived disability, the plaintiff must also prove that the employer had this perception. The New Jersey Appellate Division recently allowed a disability discrimination case to proceed. It ruled that the plaintiff was entitled to gather evidence regarding their employer’s perceptions and intent.

The New Jersey Law Against Discrimination (NJLAD) provides a broad definition of “disability” that includes a wide range of physical and psychological conditions. New Jersey courts have long held that the NJLAD’s provisions on disability discrimination apply to perceived disabilities just as much as actual ones. In other words, an employer violates the NJLAD when it believes an employee has a disability and discriminates against them because of that perceived disability.

The plaintiff in the lawsuit described above alleged that the defendants unlawfully discriminated against her because of a perception that she was an alcoholic. The New Jersey Supreme Court ruled in 1988 that alcoholism may qualify as a disability under the NJLAD.
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Federal and New Jersey employment laws prohibit discrimination on the basis of disability, which includes hearing loss. Employers must make reasonable accommodations for employees with qualifying hearing impairments as long as it does not create an undue hardship. The federal Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) often differ in the scope of their protections, with state law tending to be more expansive. The definition of “disability” under federal law, in turn, tends to be more restrictive. The Equal Employment Opportunity Commission (EEOC), which enforces the ADA and other federal employment statutes, recently issued guidance on how employers may address employees or job applicants with hearing disabilities.

The NJLAD defines “disability” as a range of conditions that either “prevent[] the typical exercise of any bodily or mental functions” or can be demonstrated through “accepted clinical or laboratory diagnostic techniques.” The ADA’s definition depends more on how a condition affects an individual. In order to qualify as a disability under the ADA, a condition must “substantially limit[] one or more major life activities.”

When an employee with a qualifying disability requests an accommodation, the employer must consider whether providing that accommodation would pose an undue hardship. They must work with the employee to find the best way to help them perform their job duties. Factors that employers may consider during this process include the cost of a requested accommodation and the effect it will have on the workplace, other employees, and the employer’s business.
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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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