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Many people call and ask our office whether they can avoid an employer’s mandate to be COVID-19 vaccinated by claiming a religious exemption.  It is true that New Jersey’s Law Against Discrimination prohibits, “any employer to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require a person to violate or forego a sincerely held religious practice or religious observance … unless, after engaging in a good faith effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” N.J.S.A. 10:5-12(q)(1) (emphasis added). This means that if an employee can demonstrate they are an observant member of a religion who’s sincerely held religious belief forbids them from receiving vaccines they should be able to legally require their employer to accommodate their alleged need for a vaccine exemption, and instead, have the employer apply methods of mitigating the spread of the coronavirus such as requiring periodic proof of negative test results and social distancing in the workplace.  However, this begs the question as to whether the tenet of any recognized religion prohibits their followers from receiving vaccine shots.  A non-exhaustive search reveals that none of the major recognized religions prohibits vaccinations.

Christians

The Christian faith consists of multiple different denominations which may differ in theological approach to vaccines.  However, the great majority of Christian denominations have no objection to vaccination including the following: Roman Catholicism, Eastern Orthodox, Oriental Orthodox, Amish, Anglican, Baptist, The Church of Jesus Christ of Latter-Day Saints (Mormon), Congregational, Episcopalian, Jehovah’s Witness, Lutheran, Mennonite, Methodist (including African Methodist Episcopal), Quaker, Christian Scientist, Pentecostal, Presbyterian, Seventh Day Adventist, and Unitarian-Universalist. www.vumc.org/health-wellness/news-resource-articles/immunizations-and-religion.There are certain Christian denominations which object to vaccinations including the Dutch Reformed Congregations (however, others within the faith accept immunizations as a gift from God), and certain faith healing denominations such as the Faith Tabernacle, Church of the First Born, Faith Assembly, and End Time Ministry. Id.

Sexual harassment is not typically about lust or the desire for sex.  Rather, at its core its typically about exerting control and domination over subordinates in the workplace.  Such is the case involving New York Governor Andrew Cuomo where numerous allegations of sexual harassment, intimidation, and retaliation culminated in his resignation from office following the release of a devastating 165-page investigation report by the New York State Attorney General’s Office. According to Dr. Louise Fitzgerald, a psychologist at the University of Illinois, only about 25 percent of cases of sexual harassment are botched seductions in which the man “is trying to get someone into bed.” According to Dr. Fitzgerald, “[i]n less than 5 percent of cases the harassment involves a bribe or threat for sex, where the man is saying, ‘If you do this for me, I’ll help you at work, and if you don’t, I’ll make things difficult for you.’” The rest she contends is the raw exertion of power and control. Cuomo’s fall from grace is a stark reminder of the critical need to eradicate all forms of sexual harassment from the workplace in accordance with New Jersey’s own Law Against Discrimination (“LAD”).

Under the LAD sexual harassment is a form of prohibited sex discrimination and presents itself in two forms: quid pro quo sexual harassment, where an employer attempts to make an employee’s submission to sexual demands a condition of his or her employment, and hostile work environment sexual harassment. All too often, employees are faced with implicit and explicit threats that they accede to sexual advances or face repercussions. Those who face such retaliatory action for standing up to their harassers and reporting the abusive behavior may find remedy through a separate cause of action under the LAD for retaliation.

Unlike proving a hostile work environment, which requires sexual harassing conduct so severe or pervasive a reasonable person would find the conditions of employment are altered and hostile or abusive, Lehman v. Toys R’ Us, 132 N.J. 587, 603-04 (1993), proving retaliation under the LAD only requires an employee show he or she (1) engaged in a protected activity known to the employer, (2) was thereafter subjected to an adverse employment action, and (3) a causal link exists between the two. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995). Protected activity includes opposing practices or acts that are unlawful under the LAD, i.e., complaining about or protesting the sexual harassment in the workplace. See N.J.S.A. 10:5-12(d). The employee must show that his or her original complaint – the one that triggered the retaliation – was made reasonably and in good faith. Carmona v. Resorts Int’l Hotel, Inc., 189 N.J. 354, 373 (2007). A retaliation claim under the LAD differs from the more traditional understanding of discrimination in that the underlying wrongful act of the employer pertains not to the complained-of discrimination, but to the unlawful treatment of the employee because that employee exercised a right protected by the LAD.

The numbers are deeply troubling. Even though the Center for Disease Control (CDC) has repeatedly made clear that COVID-19 vaccines are overwhelming safe and effective and continue to undergo the most intensive safety monitoring in U.S. history, New Jersey employers are left to confront the reality of a large segment of their workforce who are either unwilling to vaccinate or hesitant to do so. As of August 1, 2021, 11.1 million COVID-19 vaccines have been administered in New Jersey of which 5 million are fully vaccinated residents, or 58.5% of our total state population. This means over 40% of our state population remains unvaccinated. The low rate of vaccination among young adults is particularly concerning with U.S. News & World Report reporting the vaccination rate for those 18-24 is only 50% and 41%, respectively. Unvaccinated workers pose a threat of spreading COVID-19 in their respective workplaces by risking the health of their coworkers (including their coworkers’ families and others they may come into contact with) and undermining the safe and efficient operation of the businesses they work for.  To combat this, New Jersey employers can legally require their workers to vaccinate so long as they do not violate laws prohibiting workplace discrimination.

On May 28, 2021, the federal Equal Employment Opportunity Commission (EEOC) issued a press release proclaiming that federal equal employment opportunity laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964…” The EEOC’s May 28th guidance should prove persuasive on our New Jersey courts when applying New Jersey’s Law Against Discrimination (LAD) because our state courts look to federal law when interpreting the LAD.  Victor v. State, 203 N.J. 383 (2010); see also Raspa v. Office of Sheriff of County of Gloucester, 191 N.J. 323 (2007).

Under the LAD, employers are required to reasonably accommodate an employee’s disability or sincerely held religious beliefs so long as doing so does not create an undue hardship on the employer’s business, for the company, or a coworker(s). N.J.S.A., 10:5-12; N.J.A.C., 13:13-2.5. A caveat to this is that New Jersey health care facility workers cannot refuse to vaccinate unless they qualify for a medical exemption. N.J.S.A., 26:2H-18.79. See http://www.nj.gov/health/forms/imm-53.pdf. Employer provided reasonable accommodations for those workers who cannot vaccinate due to a medical condition or sincerely held religious belief may include, but are not limited to, being required to wear a mask, presenting proof of periodic negative COVID-19 test results, working at social distance form coworkers, teleworking remotely from home, and/or working a modified shift or reassignment.

While conscious or intentional mistreatment of minorities is typically the province of a relatively small number of bigots who live among us, it is the insidious existence of unrecognized, unconscious, or implicit racial bias in our society which has and continues to systemically threaten and undermine the achievement of racial justice for all. However, a major step in the right direction toward addressing implicit racism in the New Jersey courts was recently taken by the New Jersey Supreme Court when it issued its unanimous decision in State v. Andujar, 2021 N.J. LEXIS 733 (2021), calling for the Judiciary to arrange for a Judicial Conference on Jury Selection to convene sometime in the Fall of 2021 to explore the nature of discrimination in the jury selection process.

Following a first-degree murder conviction, Defendant Edwin Andujar appealed his conviction, arguing he was denied the right to a fair trial because race discrimination infected the jury selection process. The appeal focuses on the jury selection process at trial regarding F.G., a Black male from Newark, New Jersey. During voir dire, – the process of questioning potential jury members for their suitability for jury service – F.G. was questioned extensively on his relationship with the criminal justice system and his affiliation with family and close friends who have been accused of or victims of crime.

The State challenged F.G. for cause and asked that he be removed, noting his “background,” “lingo” used about the criminal justice system, and close ties to individuals engaged in criminal activity call into question whether F.G. respects the criminal justice system. The defense countered, stating “it is not a hidden fact that living in certain areas you are going to have more people who are accused of crimes, more people who are victims of crime,” and to “hold it against [F.G.] that these things have happened . . . to people that he knows . . . would mean that a lot of people from Newark would not be able to serve.” The trial court overruled the prosecutor’s application, finding F.G. would make a fair and impartial juror. The prosecution then conducted a criminal history check on F.G., revealing that there was a warrant out for his arrest and that the State would be taking F.G. into custody the next day. The State then renewed its application to remove F.G. for cause, and successfully did so without objection and arrested F.G. On appeal, Defendant and his amici curiae contended the use of discriminatory background checks on prospective jurors violates the State and Federal Constitutions, particularly equal protection, due process, and the right to a trial by a jury comprised of a fair cross-section of the community.

The United States Supreme Court unanimously held that the National Collegiate Athletic Association (“NCAA”) cannot restrict education-related benefits provided by its member schools to student-athletes.  The decision in NCAA v. Alston, 141 S. Ct. 2141 (2021) arises out of a class-action lawsuit filed by current and former Division I student-athletes against the NCAA alleging anti-trust violations that restrict student-athletes from receiving a fair market rate for their labor. Anti-trust laws operate to promote competition between businesses and organizations to prevent monopolies by creating an even playing field among similar businesses.

The appeal to the Supreme Court stems from a federal district court ruling that permitted the NCAA to continue restricting benefits unrelated to education like cash payments to student-athletes in the form of salaries but prohibited the NCAA from restricting education-related benefits such as graduate school scholarships, post-graduate internships, and free laptops. The 9th Circuit Court of Appeals affirmed the decision of the district court, and the decision was appealed to the Supreme Court. The scope of the decision pertained only to the subset of NCAA rules restricting education-related benefits enjoined by the district court, not an across-the-board challenge to the NCAA’s rules restricting student-athlete compensation.

The NCAA urged the Court to overrule the 9th Circuit, arguing the lower courts misapplied the anti-trust standard of review, endorsing a less stringent examination to preserve the institution and integrity of American collegiate sports. Adding to this, the NCAA advanced the argument that because the NCAA is a joint venture offering its customers a unique product of intercollegiate athletic competition, the Association and its member schools are not a commercial enterprise, but are institutions advancing the societal objective of undergraduate education. In response, the athletes argue that the NCAA is asking for a complete exemption from federal anti-trust laws based on the NCAA’s reliance on a loose and inconsistent concept of “amateurism” and its importance in the realm of higher education. Pointing to the rapid ascension of college sports into the mainstream, the athletes underscore that the NCAA is a multi-billion-dollar business with television contracts in the billions per year that is only made possible by maintaining monopsony power – monopoly control on the buyer side – over the labor market for college athletes and price-fixing the ceiling on those labor costs.

A supervisor’s use of isolated but offensive racial slurs directed at and in the presence of an employee can give rise to a claim for a hostile work environment under New Jersey’s Law Against Discrimination (LAD) on their own. Rios v. Meda Pharm., Inc., 2021 N.J. LEXIS 553 (June 16, 2021). This is because the use of a racial epithet exacerbates its severity when uttered by a supervisor.

Plaintiff Armando Rios, Jr., a Hispanic employee, worked at Meda Pharmaceutical, Inc and alleged that his supervisor subjected him to a hostile work environment on account of two racial slurs directed at him while at work. According to Rios, during a conversation with his supervisor about Rios’ intentions to purchase a new home, his supervisor allegedly said, “it must be hard for a Sp– to have to get FHA loans.” About a month later, Rios’ supervisor allegedly made another racial comment while casting a role for a commercial that an actress “would work if she didn’t look too Sp–ky.” Rios claims he met with Human Resources after each incident and reported his supervisor’s comments, however, the Human Resources Director was dismissive and did not take action to remedy the situation. Rios filed a complaint asserting claims under, inter alia, the LAD, alleging a hostile work environment was created by his supervisor’s use of racial slurs. The trial court granted defendants’ motion for summary judgment, finding no rational factfinder could conclude Rios’ supervisor’s comments were sufficiently severe or pervasive to create a hostile work environment. The Superior Court Appellate Division affirmed those findings, and the issue was appealed to the State Supreme Court.

The overarching goal of the LAD is “nothing less than the eradication of the cancer of discrimination.” Fuchilla v. Layman, 109 N.J. 319, 334 (1988). To state a claim for a hostile work environment under the LAD and defeat summary judgment, a plaintiff must allege that the complained-of conduct (1) would not have occurred but for the employee’s protected class; and (2) it was severe or pervasive enough to make a (3) reasonable Hispanic person believe that (4) the conditions of employment are altered, and the working environment is hostile or abusive. Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 603-04 (1993) (hostile work environment claim based on supervisor’s acts of alleged sexual harassment). The Lehmann standard applies generally to hostile work environment claims, including claims based on racial comments. Id.; See Taylor v. Metzger, 152 N.J. 490, 498-500 (1998). Hostile work environment claims must be evaluated in light of all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interferes with an employee’s work performance. Cutler v. Dorn, 196 N.J. 419, 432 (2008).

Under New Jersey’s Law Against Discrimination (LAD), when an employee suffers injury due to their employer’s failure to accommodate his or her disability, the employer is liable for discrimination under LAD even when no direct economic harm or other form of adverse employment action was taken by the employer against the employee. Richter v. Oakland Board of Education, 2021 N.J. LEXIS 548, 2021 WL 2324982  (decided June 8, 2021). This is because the wrongful discriminatory act under LAD is the employer’s failure to perform its duty to accommodate an employee’s disability such as the one suffered by schoolteacher Mary Richter.

Plaintiff Mary Richter, a science teacher in the Oakland School District, is a type 1 diabetic and experienced a hypoglycemic event in a classroom, which resulted in severe, life-altering injuries.  At the start of the 2012-2013 school year, Richter’s lunch was scheduled for 1:05 p.m. Richter believed such a late lunch would negatively impact her blood sugar levels and asked the defendant, the principal of the school, if the schedule could be changed to allow her to have lunch earlier to better maintain her diabetic condition.  No change was made. Richter resorted to ingesting glucose tablets to maintain her blood sugar levels. An adjustment was made during the second marking period; however, in the third marking period, Richter was again scheduled for lunch at 1:05 p.m. In that third marking period, Richter suffered a hypoglycemic event in the class period before her scheduled lunch, seizing up, losing consciousness, and striking her head upon her fall, which resulted in extensive bleeding and injury. Richter was not terminated, demoted, or reassigned to another position, but filed an action against the school board under the LAD for failure to accommodate her disability. Prior to filing an action under the LAD, Richter filed a workers’ compensation claim for the work-related injuries and recovered for her medical bills and disability benefits.

Under the LAD, there is no explicit section addressing a reasonable accommodation or claim; however, New Jersey courts have consistently found the LAD requires employers to reasonably accommodate for an employee’s disability. Royster v. NJ State Police, 227 N.J. 482, 499 (2017). An employer is obligated to accommodate for an employee’s disability “unless it would impose an undue hardship on the operation on the business.” Potente, 187 N.J. at 110 (quoting N.J.A.C. 13:13-2.5(b)). To establish a failure-to-accommodate claim under the LAD, a plaintiff must establish that he or she (1) qualifies as an individual with a disability or is perceived as having a disability; (2) is qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) that the defendant failed to reasonably accommodate his or her disabilities. Royster, 227 N.J. at 500.

Older doctors in New Jersey who are required to undergo medical screening examinations as a condition of maintaining hospital staff privileges likely have the right to sue for age discrimination under New Jersey’s Law Against Discrimination, N.J.S.A., 10:5-1, et seq. (“LAD”). Supporting this conclusion is the belief held by the federal Equal Employment Opportunity Commission (“EEOC”) that age-based medical screenings of doctors violates federal discrimination laws.

In February 2020, the EEOC filed a lawsuit against Yale New Haven Hospital Inc. (“Yale”), charging the health system with violating the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. and the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101, et seq. Specifically, the EEOC alleges Yale’s “Late Career Practitioner Policy” discriminates against medical practitioners on the basis of age. The hospital’s policy requires medical practitioners who are seventy (70) years or older to take ophthalmological and neuropsychological evaluations to test cognitive and eye function.  Yale claims the hospital policy has the salutary aim of screening to identify the potentially compromised abilities of older physicians. The EEOC lawsuit filed in 2020 in the U.S. District Court for the District of Connecticut (EEOC v. Yale New Haven Hospital, Civil Action No. 3:20-cv-00187) seeks relief against Yale including, inter. alia., a permanent injunction preventing Yale from carrying out the policy or other policies that “discriminate on the basis of age,” as well as to obtain back wages and liquidated damages on behalf of those doctors negatively affected by the policy. This lawsuit remains unresolved and pending as of this writing.

Should such age-based screening of doctors be found violative of the ADA and ADEA, it is predictable that our state courts will conclude these screenings equally violate New Jersey’s LAD.   This is because New Jersey courts generally interpret the LAD by reliance upon federal court decisions construing the analogous federal antidiscrimination statutes. Chisolm v. Manimon, 97 F. Supp. 615, 621 (D. N.J. 2000). For example, in LAD employment discrimination cases, federal precedents under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17, provide a key source of interpretive authority. Lehmann v. Toys `R’ Us, Inc., 132 N.J. 587, 600 (1993). In LAD cases specifically involving age discrimination in employment, New Jersey courts adopt the analysis of federal Title VII cases and federal cases under the ADEA. Giammario v. Trenton Bd. of Educ., 203 N.J. Super. 356, 361 (App. Div. 1985). Further, in LAD disability discrimination cases, the New Jersey courts look to the standards established in federal ADA cases. Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir. 1996).

The failure to establish a causal nexus between protected whistleblowing activity and the termination of her employment was the demise of plaintiff’s whistleblowing claim in a recently issued Appellate Division opinion in Brown v. Regina Foley, et. al. 2021 N.J. Super. Unpub. LEXIS 957 (decided May 20, 2021).  In Brown, the reviewing court also affirmed that representations made in an employee handbook promising an employee a pre-termination disciplinary hearing are unenforceable when accompanied by a prominently displayed disclaimer making clear that representations contained in the handbook do not create an express or implied contractual obligation requiring the employer to comply with its own policies and procedures.

Plaintiff, Anne Brown (“Brown”), a pharmacy manager at Bayshore Community Hospital (“Bayshore”), asserted claims for wrongful discharge in violation of, among others, the New Jersey’s Conscientious Employee Protection Act (“CEPA”), N.J.S.A.  34:19-1 to -14. Bayshore terminated Brown for failure to report the undocumented and unauthorized removal of fentanyl vials from the hospital pharmacy’s drug dispensary cabinet, finding her failure to take any steps to report the missing vials to the Drug Enforcement Agency to be “egregious”. Brown argued in her complaint that the nonretaliatory reasons offered by Bayshore to justify her firing were pretext and that the true reason for her firing was, inter. alia., that she along with the hospital’s Chief Operating Officer had in the past complained about the alleged inferiority of a new automated system for dispensing controlled drugs. Brown also alleged she was not legitimately terminated because of the hospital’s failure to abide its prescribed disciplinary procedures when it failed to hold for her a review hearing prior to terminating her employment. Brown appealed the trial court’s grant to Bayshore of a motion for summary judgment dismissing her CEPA claim along with her other pled legal claims.

New Jersey’s CEPA law is designed to protect employee “whistleblowers,” making it unlawful for employers to take adverse employment action against employees who engage in protected, “whistleblowing” activities. N.J.S.A. §§ 34:19-1 et. seq.   To survive a motion for summary judgment in a CEPA action, a plaintiff must demonstrate that: (1) he or she reasonably believed that his or her employer’s conduct was in violation of a law, rule, regulation, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Chiofalo v. State, 238 N.J. 527, 541 (2019).  A plaintiff-claimant bringing an action under CEPA need not show that his or her employer actually conducted fraudulent or illegal activity, rather they are only required to produce sufficient evidence to support an objectively reasonable belief that a violation has occurred. Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003).

The New Jersey Supreme Court recently addressed, among other issues, the question of whether a “suggested course of action” by a supervisor to a subordinate can suffice as a reasonable belief under New Jersey’s whistleblower law that the supervisor wants the subordinate to engage in conduct that violates law or public policy.  Allen v. Cape May County, 2021 N.J. LEXIS 392 (decided May 12, 2021). The unclear answer provided by the majority in Allen to this question is that it depends on the facts and circumstances underlying the communications between supervisor and subordinate. Justice Albin’s opinion in dissent (in part) was as equivocal.

Kim Allen (Allen) was the Purchasing Agent for Cape May County (County) under a renewable contract of employment. She reported to Gerald Thorton (Thorton), the County Freeholder Director. The story begins when a law firm named Capehart & Scatchard (Capehart) submitted a bid to represent the County in its workers compensation cases specifying only a proposed hourly rate rather than the County’s preferred per-case quote. Upon learning this, Jeffrey Lindsay, who as Director of Human Resources and Thorton’s stepson, oversaw the department that handled workers’ compensation matters for the County, approached Allen, and asked whether Capehart could fax a new proposal page to supplement the bid. Allen told Lindsay that it would be “illegal” to accept a substituted page (no page was ever switched out on the bid). Subsequent thereto, Allen told attorneys from a law firm named Ballard Spahr who were hired as independent investigators of an unrelated matter, about her exchange with Lindsay and how concerning it was to her. Ballard Spahr’s findings were submitted to the Freeholders in which the firm concluded that Lindsay had done nothing wrong.

Following this, the Freeholders nonrenewed Allen’s contract based on Thorton’s recommendation.  Thorton claimed he made this recommendation because a number of department heads had complained about Allen’s job performance. Consequently, Allen filed a wrongful discharge whistleblowing lawsuit under New Jersey’s Conscientious Employee Protection Act (CEPA) alleging that her response to Lindsay’s inquiry about Capehart’s bid proposal and her statement to the Ballard Spahr investigator about that inquiry constituted CEPA-protected conduct.

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