Articles Posted in Discrimination

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Discrimination based on age is as pervasive a problem for the American workforce as it is tricky to prove. Employers’ efforts to avoid litigation have driven the development of a multitude of sneaky strategies to avoid liability under federal and state anti-discrimination laws. In fact, one of the largest technology firms in the world – IBM Corp. – recently demonstrated some of these tactics when they pushed out experienced, older employees to make way for younger, less-experienced hires. In just the last five years, IBM has eliminated 20,000 American employees aged 40 and over. This represents a whopping 60 percent of the company’s total job cuts during that time. A confidential company document obtained by the press explained explicitly that these cuts were made in order to achieve the “correct seniority mix” of its employees. To achieve this, IBM: (1) denied older workers information the company was legally required to disclose informing employees of their rights, (2) required workers to sign away their rights to have any complaints heard in a court of law, (3) used techniques in rating employee performance that punished those who had worked for IBM the longest, and (4) encouraged employees IBM had laid-off to seek another position within the company while simultaneously instructing managers not to hire them, and (5) laid-off older employees only to hire some back as independent contractors to do the same work at a greatly reduced paycheck, among other malevolent behaviors.

In New Jersey, an age discrimination claim is brought under the state’s Law Against Discrimination (NJLAD). The right to be free from discrimination is a civil right, and NJLAD covers employees and prospective employees from discrimination in the hiring and employment processes. A plaintiff bringing a claim of age discrimination will have to prove their prima facie case, consisting of four parts. First, the employee is a member of a protected class. In age discrimination, this typically means the employee is of an advanced age. However, the NJLAD also protects young workers from discrimination. Second, the employee was preforming their job at a level that met the employer’s legitimate expectations. Third, some adverse action was taken against the employee. This may include being fired, demoted, failing to promote, bad performance review or reference, among others. Finally, a plaintiff must have proof of causation. Meaning the adverse action was taken because of the employee’s age.

Causation can be established in many ways. The above example at IBM is an extreme one because it is unusual for there to be a paper trail, or even an explicit reference to age. Most age discrimination is more subtle. Employers have no doubt been warned not to call a worker “old” outright. Instead, comments made are somewhat nuanced and could be taken in more than one way. Consider “lacking in energy,” “not being up to date,” or “set in in his [or her] ways,” each of these phrases has been judged to be coded language or ‘dog whistles’ for ageism by New Jersey courts. Other ways to establish causation include: being replaced by someone substantially younger or older than oneself; suddenly receiving bad performance reviews after a long track record of good performance; the cutting of job duties or hours; attempts to force retirement such as threats to employee benefits or pension; and many more. Once the facts of the prima facie are shown to be plausible, the defendant gets the opportunity to offer a legitimate, non-discriminatory reason for the adverse employment action such as bad performance. The plaintiff may then bring proof that the reason given by the employer is actually pretext for discrimination, and not the true reason for the employer’s action.

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Employers can be held liable under Title VII of the Civil Rights Act of 1964, the American with Disabilities Act (ADA) and New Jersey’s Law Against Discrimination (“LAD”) for discriminating against an employee because of the employee’s association with a member of a protected group (e.g., sex, race, national origin, religion, disability, etc.).  This means an employer is prohibited from taking adverse employment action against a worker in the form of a hostile work environment, demotion, failure to promote, cut in pay, wrongful discharge, etc., where for example: (a) a Caucasian worker married an African American or other person of color; (b) a worker gets engaged to a Muslim; (c) a female employee gives birth to a child with disabilities; or (d) an employee’s spouse becomes afflicted with a potentially terminal disease.

Courts have found protection against “association discrimination” under New Jersey’s LAD”.  See e.g. Downs v. U.S. Pipe & Foundry Co., 441 F. Supp. 2d 661, 665 (D.N.J. 2006) (“In the absence of any contrary authority, this Court concludes that the New Jersey Supreme Court would hold that NJLAD bars employment discrimination based upon a person’s association with a person with a disability”) (citing O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249 (App. Div. 1998) and Berner v. Enclave Condo. Ass’n, Inc., 322 N.J. Super. 229 (App. Div. 1999), cert. denied, 162 N.J. 131 (1999)); see also Pailleret v. Jersey Constr. Inc., 2011 U.S. Dist. LEXIS 42364 *22 (D.N.J. Apr. 19, 2011) (“The NJLAD affords protection to both disabled persons as well as individuals associated with disabled persons”).

In O’Lone, the New Jersey Appellate Division held “where the plaintiff is wrongfully discharged for associating with a member of a protected group, that it is the functional equivalent of being a member of the protected group”.  O’Lone, 313 N.J. Super. at 255 (emphasis added).  Downs, supra., is very instructive in this matter.  In that case, the pertinent facts were set forth as follows:

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New Jersey is one of the states comprising the United States Court of Appeals for the Third Circuit.  In considering the scope of protections afforded workers by Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000 et seq. (“Title VII”), our Third Circuit defines an “employee” as including those workers placed by temporary staffing agencies. Faush v. Tuesday Morning, Inc., 808 F.3d 208, 213 (3d Cir. 2015).  The Third Circuit arrived at this conclusion by applying the so-called “Darden Test” set down by our United States Supreme Court in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992).  Under the Darden Test, a court looks at the following 12 steps to determine whether a worker qualifies as an “employee” for Title VII protection purposes:  (1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party’s discretion over when and how long to work; (7) the method of payment; (8) the hired party’s role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) and the tax treatment of the hired party. However, in the Third Circuit, courts focus primarily on which entity paid the employees’ salaries, hired and fired them, and had control over their daily employment activities. Faush , supra.,808 F.3d 208 at 214.

In Faush, the Third Circuit concluded that a temporary agency worker who was “leased” to a store may be considered the store’s “employee” under Title VII, and therefore, can sue the store for discrimination.  There, Tuesday Morning Inc. (“Tuesday Morning”) had leased Faush and other temporary workers from a temporary staffing agency to perform basic labor tasks for the store such as stocking shelves. Faush alleged Tuesday Morning subjected him and other black temporary workers to racial discrimination. In reversing the grant of summary judgment to Tuesday Morning by the District Court below, the Third Circuit applied the Darden Test and found that Tuesday Morning controlled and supervised where, when and how the temporary workers worked. Further, while Tuesday Morning did not directly pay the temporary workers, the store did pay the temps based on the hours they worked and compensated them for overtime. Therefore, the Third Circuit found the method of payment used by Tuesday Morning was indistinguishable from directly paying them as permanent W-2 employees. Consequently, Faush was able to sue Tuesday Morning for employment discrimination under Title VII.

Because New Jersey’s Law Against Discrimination (the “LAD”) is supposed to be “liberally construed”, Battaglia v. UPS, INC., 214 N.J. 518, 546 (2013), and given New Jersey Courts will often look to the federal courts and their construction of federal laws for guidance in construing the LAD , Bergen Commercial Bank v. Sisler, 157 N.J. 188, 200 (1999) (finding that to the extent federal standards are useful and fair, they will be applied to LAD in the interest of achieving a degree of uniformity in the discrimination laws), it may be fairly predicted that our state courts would likely follow the Third Circuit and conclude that temp workers are to be considered employees under LAD, and permit temp workers to sue employers under LAD where workplace discrimination can be proved.

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To deny an employee a transfer to a lateral employment position because of his or her protected class characteristic, e.g., race/color, religion/creed, sex/gender, national origin/ancestry, age, disability, or sexual orientation, is a violation of The Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et, seq. (1964) (“Title VII”) and the New Jersey Law Against Discrimination (the “NJLAD”). An employee demonstrating that they were the victim of discrimination needs to establish the existence of three elements: (1) that they are part of a protected category (race, sex, religion, color, or national origin); (2) they suffered an adverse action; and (3) causality, that is, they suffered adverse action from their employer because of their protected class characteristic(s). Once these three elements are established, discrimination can be found even when an employer merely withholds a benefit and the harm is not necessarily concrete or directly harmful to the employee. For example, if an employer does not give an (minority, religious, etc.) employee a particular promotion/benefit, which had otherwise been given to other, similarly placed (non-protected category) employees, it can be discrimination. This may apply even when the employer is not obligated to give those benefits/opportunities to the employees and the protected employee is not necessarily in a worse position than they were prior to being denied the requested benefit.

Recently, the D.C. Circuit in Ortiz-Diaz v. United States HUD, No. 15-5008, 2016 U.S. App. LEXIS 23805, at *1 (D.C. Cir. Aug. 2, 2016), limited prior precedent, reversed summary judgment, and remanded back to trial determination on the issue of whether a supervisor’s denial of a Hispanic employee’s lateral transfer request was discrimination under Title VII. Plaintiff, Samuel Ortiz-Diaz, worked for the Washington, D.C. Office of Inspector General and applied for a transfer to the Albany, New York, or Hartford offices. Ortiz-Diaz wanted to work at the Albany or Hartford offices to obtain a new “good” supervisor and remove himself from the control of his current supervisor who Ortiz-Diaz perceived as racially and ethnically biased. Ortiz-Diaz was even willing to take a pay cut just to get away from his biased boss, and thereby improve his career prospects, but his supervisor denied Ortiz-Diaz’s transfer request without explanation. Ortiz-Diaz sued claiming the denial of his lateral transfer was an act of discrimination. In agreeing that Ortiz-Diaz deserved to have his claims decided by a jury at trial, the D.C. Circuit Court distanced itself from prior court precedent where it was found that denial of a lateral transfer is not discrimination.  In doing so, the D.C. Circuit Court concluded that since Ortiz-Diaz was denied the opportunity to advance his career by a supervisor who he perceived discriminated against him because of Ortiz-Diaz’s Hispanic heritage, his Title VII claim of discrimination was deemed legitimate and deserving of a jury trial.

The Ortiz-Diaz decision demonstrates how some federal courts continue to expand the protection of federal employment discrimination laws. Our courts in New Jersey often look to federal law as a key source of interpretive authority when assessing allegations of unlawful discrimination. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990). Given the liberality typically accorded the interpretation and application of the NJLAD, it may be fairly predicted that our state courts would likely follow the D.C. Circuit Court by prohibiting discriminatory employment practices which take the form of denying an employee a lateral transfer.

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The federal Age Discrimination in Employment Act of 1967 (“ADEA”) and the New Jersey Law Against Discrimination (“NJLAD”) prohibit employers from discriminating against people because of their age. This includes a list of forbidden practices such as considering age when hiring and firing, compensation, assignment, transfer, promotion, use of company facilities, training, fringe benefits, pay, retirement plans, and disability leave, to name a few. While generally an employer cannot directly deny someone an opportunity to apply for a job because of their age – under the ADEA someone age 40 or over & under the NJLAD ages 18-70 (w/some exceptions) – it is currently unclear whether recruitment practices which discriminate against older applicants and deny them an equal opportunity to apply for jobs which they are well qualified are prohibited by the ADEA and the NJLAD.

The ADEA protections can be understood in two ways: Either, only “employees” are protected and anyone who is not a current employee does not have ADEA protection; or, “any individual” who is discriminated against by an employer based on their age is protected (even if they are not yet an employee). Initially, the Fourth Circuit in Villarreal v. R.J. Reynolds Tobacco Co., 839 F3d 958, 961 (11th Cir. 2016) upheld the district court’s dismissal of an ADEA suit claiming that Villareal was unfairly discriminated against by R.J. Reynolds and that his fully qualified job application was dismissed because R.J. Reynolds was looking for younger recruits only. Id. R.J. Reynolds had issued hiring guidelines “describing their ‘targeted candidate’ as someone ‘2-3 years out of college’ who ‘adjusts easily to change’” and “‘to stay away from’ applicants ‘in sales 8-10 years.’” Id. The court justified dismissing the claim because it construed the ADEA language (section 4(a)(2)) to protect only current employees from discrimination and not job applicants. Id. at 963. However, the dissent disagreed pointing out that the ADEA protects “any individual” from age discrimination and not just employees.

In February 2017, the Northern District Courtof California in Rabin v. PricewaterhouseCoopers, LLP, No. 16-cv-02276-JST, 2017 U.S. Dist. Lexis 23224 at *1 (N.D. Cal. Feb. 17, 2017) permitted an ADEA disparate-impact claim to proceed. Building on the Villareal dissent, the court in Rabin held that the ADEA protected “any individual” not just current employees, and therefore, practices which disparately impact people based on age are prohibited by the ADEA even if they are not yet employed. Id. at *17.

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There are many religions and religious beliefs. There’s Judaism, Christianity, Islam, Bahá’í Faith, Hinduism, Taoism, Buddhism, Sikhism, Slavic neopaganism, Celtic polytheism, Heathenism (German paganism), Semitic neopaganism, Wicca, Kemetism (Egyptian paganism), Hellenism, Italo-Roman neopaganism to name a few. Whatever your sincerely held religious belief is, if any, federal and state law protects your right to observe those beliefs. 42 U.S.C. §§ 2000e et al 2012 (“Title VII”); N.J.S.A. 10:5-1, et. seq., the New Jersey Law Against Discrimination (“NJLAD”). In fact, an employer may be required to reasonably accommodate your religious belief so long as to do so does not cause the employer or co-workers an undue hardship.

Protected religious beliefs are based on an employee’s sincerely held belief. It does not matter whether the employee has a relatable or probable belief. Rather, if the employee indisputably has a sincere religious belief, the employee is entitled to receive a reasonable accommodation from their employer regardless of whether the employer likes or agrees with that belief.  The case of United States EEOC v. Consol Energy Inc., Nos. 16-1230, 16-1406, 2017 U.S. App. LEXIS 10385, at*1 (4th Cir. June 12, 2017), while somewhat factually unusual, underscores how important it is for an employer to focus on whether a requested accommodation is reasonable, and not whether the employee’s religious belief is reasonable. There, the Fourth Circuit held that so long as the employee has a legitimate religious belief, regardless how farfetched, they are entitled to be reasonably accommodated.

In United States EEOC v. Consol Energy Inc., the Fourth Circuit affirmed a $586,000 award to Beverly R. Butcher (“Butcher”) because his employer violated his religious rights under Title VII. Id. Butcher, a lifelong Evangelical Christian, worked for Robinson Rue Mines (owned by Consol Energy Inc. “Consol”) for 37 years without incident. Id. When Consol decided to use biometric scanners as a method of tracking timesheets Butcher protested. Butcher explained that as a devout Christian he believed using a biometric scanner to clock in and out of his job would mark him as a follower of the Antichrist, subjecting him to an eternity of fire and brimstone. Id. at *6. Consol chose to debate the legitimacy of these beliefs with Butcher and even presented him a letter explaining how the scanner leaves no physical marks and that Butcher’s understanding of the scriptures was incorrect.  Butcher persisted and a lawsuit was filed.

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People get aches and pains all the time. Your back hurts, your stomach is upset, or you are coughing and congested from a bad cold. Generally, that’s what sick days are for. And then there are times when someone sustains an injury or illness that temporarily prevents them from physically, mentally,or emotionally doing their job. In such instances, under the federal American with Disabilities Act (“ADA”), and the New Jersey Law against Discrimination (“LAD”), an employee is entitled to be reasonably accommodated by their employer. Under the LAD and ADA employees are even entitled to be accommodated for temporary disabilities. Temporary conditions that meet the definition of disability may be covered by the LAD and ADA. See, Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1998); Clowes v. Terminix Int’l, Inc., 109 N.J. 575 (1988); Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501, 519 (App. Div. 2001) (observing that LAD “is very broad and does not require that a disability restrict any major life activities to any degree”); see also, Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir. January 23, 2014), (ruling that a temporary and severe impairment does in fact qualify as a disability under the ADA, thus, persons with temporary and severe impairments are protected by the ADA)

For an employee to be entitled to a reasonable accommodation for a disability, the ADA and LAD requires the injured or disabled employee can perform the essential functions of their job with or without an accommodation.  Put differently, an employer is not required to accommodate an employee who cannot perform his or her essential job functions even with an accommodation. Hennessey v. Winslow Township, 368 N.J. Super. 443, 452 (App. Div. 2004), aff’d, 183 N.J. 593 (2005). What constitutes an “essential function” is a very fact specific question. For example, if the essential functions of a job require heavy lifting and the employee can no longer lift heavy objects, the employer does not have to accommodate the employee.Furthermore, the ADA and LAD require an employer to reasonably accommodate a temporarily disabled employee by offering the employee, if available, the opportunity to fill a preexisting light duty position; in doing so the employee is helped to transition back to their original job.

In a landmark case, the United States Supreme Court in Young v. UPS ruled that under the federal Pregnancy Discrimination Act (“PDA”) (where under federal law pregnancy is not inherently a disability) an employer must accommodate a pregnant employee with accommodations the employer gives to other workers who are similarly disabled. There, a pregnant Ms. Young was ordered by her doctor not to lift objects weighing more than 20 pounds. UPS refused to accommodate Young and move her to an available “light duty” job. Instead, UPS required Ms. Young to use up her vacation days, and when those ran out, to take an extended unpaid leave of absence. The Supreme Court found that if other similarly disabled UPS workers with lifting restrictions were being accommodated by the giving of light duty assignments,so too was Ms. Young entitled to the same light duty accommodation from UPS.

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Expressing ourselves through social media is the norm. Whether it’s a wacky, funny selfie with dog ears on Snapchat, or posting a snarky comment on Facebook; it is a way to express ourselves. However, it is also a quick way for employers to find out about what their employees are thinking and saying.

As a citizen of the United States you have a First Amendment right to freely express a controversial opinion or inflammatory statement in in a public forum. While the United States Constitution and its Bill of Rights protects free speech, this protection only extends to government employees. As far as private employees’ job security is concerned, they do not enjoy similar carte blanche freedom to say whatever they want with impunity, i.e., without being disciplined. This is because New Jersey is an “employment at will” state. This means a private employer can decide to fire an employee for no good reason at all, so long as this decision does not violate the law. For instance, an employee of a private company who criticizes their boss or a customer may be fired for doing so.

In our electronically interconnected viral world, comments typed onto an iPad may impact your job security. Publicly accessible internet posts blur the boundaries between personal and work life, and all that matters are whether a comment, post, tweet, or picture offends your employer. Accordingly, you must be aware that what you post or tweet may set in motion the loss of your job. However, when employees discuss legally protected topics such as discrimination, they can by and large be protected from adverse employment action.

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The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) protects physically and mentally disabled employees from discrimination.  An employer cannot discriminate in their job applications, hiring, firing, training, pay, promotion, benefits, or leave against a disabled employee. Furthermore, an employer may not harass or retaliate against an employee who has a disability. Most critically, employers must provide disabled employees with reasonable accommodations at work.

When bringing disability claims, the LAD is more inclusive than the ADA. While the ADA does not include pregnancy itself as a disability and only a medical condition or complication due to pregnancy is considered a disability; the LAD includes even pregnancy itself as a disability. Also, the ADA does not protect an employee from an employer who is a private club while the LAD has no such limitation. 42 U.S.C. § 12111 (5)(B)(ii); N.J.S.A. 10:5-5(e).

The ADA and LAD protect employees whose disabilities substantially affect their major life activities. Such activities include hearing, seeing, speaking, thinking, walking, breathing, or performing manual tasks. Further, long-term disabilities/illnesses, such as cancer or diabetes, are still protected even though they are not permanent. However, if a disability is clearly short-term, for instance a cold or a sprain, it is generally not a “disability” which is protected. Finally, an employee’s disability does not need to be constant. Rather, disabilities which cause flair ups, such as chrome’s disease or cancer that is in remission, are also protected.

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On September 19, 2016, the New Jersey Supreme Court upheld large emotional distress verdicts in a national origin discrimination case where the plaintiffs, Ramon and Jeffrey Cuevas, neither treated with a mental health professional, nor presented expert testimony at trial in support of their respective claims of emotional distress damages.  Ramon Cuevas v. Wentworth Group, 2016 N.J. LEXIS 891 (decided September 19, 2016). The Cuevas brothers filed a lawsuit under the New Jersey Law Against Discrimination against their former employer, the Wentworth Group, alleging they were routinely subject to racially disparaging and humiliating remarks by Wentworth executives; the Cuevas brothers also alleged they were the victims of retaliatory firings. The case was tried before a jury who awarded them $2.5 million in damages, including $800,000 to Ramon and $600,000 to Jeffrey for emotional distress damages. The defendants’ filed a post-trial motion with the court requesting a reduction of the emotional distress damages award because they felt they were unconscionably too high.  Defendants’ application to the court for reduction of a jury award is called remittitur. The trial court denied defendants’ motion finding that the award was not “shocking to the conscience.”   The Appellate Division affirmed the jury verdict and the trial judge’s denial of defendants’ remitter application.  The issue on appeal before the New Jersey Supreme Court was whether the trial court properly denied defendants’ application for remittitur.

In agreeing with the Appellate Division panel below, and relying on its prior 2004 decision in Tarr v. Ciasulli, 181 N.J. 70 (2004), the New Jersey Supreme Court in Cuevas rejected defendants’ argument that, in a LAD case, only nominal damages may compensate for emotional distress when there is no “independent corroborative proof or a showing of resulting physical or psychological symptoms.” In affirming the trial court’s decision to leave intact the jury’s emotional distress verdict, the Court emphasized that, “the Legislature intended victims of discrimination to obtain compensation for mental anguish, embarrassment, and the like, without limitation to severe emotional or physical ailments.” (emphasis in original) quoting Tarr, supra., at 81. In doing so, the Court in Cuevas noted that a number of courts have upheld high emotional-distress LAD awards in the absence of expert testimony from mental-health experts. See, e.g., Rendine v. Pantzer, 141 N.J. 292, 311-13 (1995) (affirming trial court’s denial of remittitur and upholding jury’s emotional-damages awards of $105,000 and $125,000 for two plaintiffs in LAD gender-discrimination wrongful-termination case); Quinlan v. 36 Curtiss-Wright Corp., 409 N.J. Super. 193, 217 (App. Div. 2009) (upholding emotional-distress damages of $187,128 in LAD gender discrimination failure-to-promote case), rev’d on other grounds, 204 N.J. 239 (2010); Lockley v. Turner, 344 N.J. Super. 1, 12-14 (App. Div. 2001) (upholding $750,000 emotional-damages award), aff’d in part and modified in part on other grounds, 177 N.J. 413 (2003).

The Court further made clear that trial judges should be reticent to invade the province of the jury in determining what is a fair and reasonable damages verdict for a victim of proven discrimination.  This is because a jury’s verdict is cloaked with a “presumption of correctness” quoting Baxter v. Fairmont Food Co., 74 N.J.  588, 598 (1977).  The Court went on to opine that, “The unique nature of each case and the suffering of each plaintiff is the reason why juries are told that, in fixing a monetary amount for emotional-distress damages, there is ‘no better yardstick for your guidance than your own impartial judgment and experience.’” Model Jury Charges (Civil) § 2.36, 34 “Past and Future Emotional Distress in an Employment Law Case” (2014).