Articles Posted in Discrimination

On July 8, 2020, the United States Supreme Court narrowed employment protections from state and federal anti-discrimination laws for religious schoolteachers. In Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267, the Court held that the First Amendment’s religion clauses foreclose courts from hearing employment-discrimination claims from teachers at religious schools who have at least some role in teaching the faith.

In 2012, the Supreme Court ruled, in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012), that the “ministerial exception,” which bars ministers from suing churches and other religious institutions for employment discrimination, prohibited a lawsuit filed by a teacher at a Lutheran school who was also an ordained minister. By a vote of 7-2, the Court held that the exception also forecloses lawsuits by two teachers at Catholic elementary schools in southern California. Although the teachers were not ordained ministers, the schools had argued that the exception nonetheless applied because they played a key role in teaching religion to their students, and the Court – in an opinion by Justice Samuel Alito – agreed.

The decision came in a pair of cases, against parish schools in the Los Angeles area. Agnes Morrissey-Berru taught at Our Lady of Guadalupe School in Hermosa Beach for nearly two decades before she was told that her contract would not be renewed. Morrissey-Berru went to federal court, where she claimed that she had been the victim of age discrimination. The district court threw out the lawsuit, agreeing with the school that the ministerial exception applied. The second plaintiff, Kristen Biel, sued St. James School in Torrance when – not long after she disclosed that she was being treated for breast cancer – the school failed to renew her contract. Biel claimed that the school had discriminated against her because she had cancer, but the district court agreed with the school that Biel’s lawsuit was barred by the ministerial exception. The United States Court of Appeals for the 9th Circuit reinstated both teachers’ lawsuits. It reasoned that the ministerial exception normally applies when an employee plays a “religious leadership” role, but that Biel and Morrissey-Berru played a more limited role, mostly “teaching religion from a book.” The schools went to the Supreme Court, which reversed.

When Donald J. Trump was elected president in 2016, gay and lesbian leaders feared their far-reaching civil rights victories of recent years would be in peril because of the imminent arrival of scores of conservative judges and full Republican control of the federal government. But on Monday, June 15, 2020, Trump appointee Justice Neil Gorsuch authored an historic 6-3 majority opinion by the Supreme Court of the United States providing nationwide protections for the LGBTQ community against workplace discrimination. In Bostock v. Clayton County, Georgia 2020 WL 3146686, Justice Gorsuch wrote, “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. *** We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” Prior to Bostock, it was legal in more than half of the states of our country to fire or not hire workers for being gay, bisexual, or transgender.

The decision in Bostock covering three cases was the Court’s first on LGBTQ rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions including the seminal case of  Obergefell v. Hodges, 576 U.S. 135 (2015) legalizing gay marriage in the country. The first of these cases concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock and Altitude Express Inc. v. Zarda, No. 17-1623.  The third was a gender identity case entitled R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107. R.G. & G.R., was brought by a transgender woman named Aimee Stephens who was fired from a Michigan funeral home after making it known in 2013 that she was a transgender woman and would start working in women’s clothing. When describing the 3 cases, Justice Gorsuch wrote, “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

Justice Gorsuch began his opinion in Bostock by explaining that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law. Here, he reasoned, the word “sex” means either male or female. Under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” Justice Gorsuch stressed that what matters is whether “changing the employee’s sex would have yielded a different choice by the employer.” Discrimination against LGBTQ employees, Justice Gorsuch and the rest of the majority made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.”

As the COVID-19 pandemic spreads its fear and pestilence throughout our communities, it is important for New Jersey workers to be aware there are many employment laws available to protect their jobs should they need time off from work because they or a family member becomes sick from the virus. This article will discuss job protections provided by New Jersey Law Against Discrimination, the American With Disabilities Act, the federal Family and Medical Leave Act, the New Jersey Family Leave Act, and New Jersey’s Paid Sick Leave Act.

Protections Provided By the New Jersey’s Law Against Discrimination (LAD) and the federal American With Disabilities Act (ADA)

An employee suffering the temporary disabling effects of a virus induced disability may find protection under the “reasonable accommodation” requirements of the New Jersey’s Law Against Discrimination (LAD) and the federal American With Disabilities Act (ADA). Failla v. City of Passaic, 146 F.3d. 149 (3rd Cir 1998); Clowes v. Terminix Int’l, Inc., 109 N.J. 575 (1988).

As this blog previously informed, back on April 24, 2018, New Jersey Governor Phil Murphy signed into law the Diane B. Allen Equal Pay Act (the EPA). The EPA prohibits an employer from paying an employee who is deemed a member of a class protected under New Jersey’s Law Against Discrimination (the LAD) less than what it pays an employee who is not a member of that LAD-protected class who performs  substantially similar work. Protected class characteristics under the EPA remain the same as they are  under the LAD, that is, it is against the law to treat someone hostilely, unfairly or differently because of their, “race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, etc.” N.J.S.A., 10:5-12(a). This article will discuss the official enforcement guidance recently issued by the New Jersey Division of Civil Rights addressing the nature and scope of the EPA.

The EPA expands the remedies available to a victim of pay discrimination. Prior to the passage of the EPA, the LAD already prohibited employers from discriminating “in compensation or in terms, conditions or privileges of employment” based on many protected characteristics. Historically under the LAD, a person protected under the LAD could recover up to two years of back pay for a successful pay discrimination case. Now under the EPA, an employee who establishes pay discrimination can recover up to six years of back pay if the discrimination was continuous, and the most recent violation occurred within the LAD’s two-year statute of limitations. The EPA also makes clear that a violation of the LAD occurs each time an employee is “affected by application of a discriminatory compensation decision or other practice,” including each time an employee receives a paycheck. N.J.S.A. ,10:5-12(a).

The EPA requires equal pay for substantially similar work.  The EPA prohibits an employer from paying any employee “who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.” N.J.S.A., 10:5-12(t). The EPA specifies that “[c]omparisons of wage rates shall be based on wage rates in all of an employer’s operations or facilities.” Id. It also prevents employers from reducing anyone’s compensation to cure a violation of the Equal Pay Act. Id.

In 2014, the New Jersey Pregnant Workers’ Fairness Act (“NJPWFA”) was signed into law to strengthen protections afforded pregnant employees. Under the NJPWFA, employers must provide pregnant workers reasonable accommodations that would allow them to continue working in their positions. The NJPWFA forbids employers from treating pregnant workers in a “manner less favorable than the treatment of other persons not affected by pregnancy.” N.J.S.A. 10:5-12(s). However, the statute does not require employers to afford pregnant employees with the same reasonable accommodations it gives to nonpregnant injured workers similar in their ability or inability to work.

The NJPWFA provides examples of reasonable accommodations, “such as…temporary transfers to less strenuous or hazardous work.” This means that if a pregnant worker requested a temporary transfer to a light-duty position made available to a similarly situated nonpregnant injured worker, then the pregnant employee should be entitled to such an accommodation under the NJPWFA. Our New Jersey Appellate Division recently addressed this very issue in Delanoy v. Twp. of Ocean, 2020 N.J. Super. LEXIS 1, *2 (Decided January 3, 2020)

In Delanoy, plaintiff, a pregnant police officer, notified her employer of her doctor’s order prohibiting her from performing certain essential patrol officer functions (e.g. carrying a gun) during the later stages of  her pregnancy, and in turn recommended she be removed from patrol duty and transferred to a “light-duty” position during such time. The employer police department (the “Department”) assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’)…which allows pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time) before going on that different assignment.” Id. at *3. The Department also maintained an almost identical “Light-Duty SOP” for nonpregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. When the Department refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The Department argued that plaintiff’s transfer to a fundamentally different assignment did not constitute an accommodation as defined by the LAD because plaintiff was not entitled to a reasonable accommodation since none existed that would allow her to continue performing the essential functions of a patrol officer while pregnant.

Winter brings the onset of flu season. According to the Centers for Disease Control (CDC), the flu, short for influenza, is a contagious respiratory illness that effects on average 8% of the population every flu season, or between 9.2 million and 35.6 million flu-related illnesses each year in the United States. The best way to prevent the flu is by getting a flu vaccine. Most employers not in the healthcare field do not require employees to receive compulsory vaccines of any kind, including those for the flu. However, because healthcare employees are likely to be in contact with patients with compromised immune systems, healthcare providers often require their employees to submit to mandatory vaccinations, including forced flu shots. Refusing to do so has cost many healthcare workers their jobs. For example, in November 2017, Minnesota-based Essentia Health fired 69 employees who refused to get the flu vaccine, and in 2012, Cincinnati-based TriHealth fired 150 employees for not getting the flu shot

Terminating an employee when they refuse a flu shot on religious grounds (or because of illness or disability) may give rise to a claim of unlawful discrimination in violation of New Jersey’s Law Against Discrimination (LAD). The LAD prohibits employers from “discharg[ing]” or “discriminat[ing] against [an employee] in compensation or in terms, conditions or privileges of employment” due to, among other reasons, the employee’s religion. N.J.S.A. 10:5-12(a); see also El-Sioufi v. St. Peter’s Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005). Under LAD an employer may accommodate sincerely held religious practices that may conflict with workplace rules, so long as the religious practices does not impose an undue hardship. Id.

Few reported court cases in New Jersey have been found addressing the refusal on nonreligious secular grounds to comply with a company’s compulsory flu vaccine policy. One case found is Valent v. Board of Review, Dept. of Labor, 436 N.J. Super. 41 (App. Div. 2014), where nurse Valent, an employee of Hackettstown Community Hospital (“HCH”), refused to take a flu vaccine for purely secular and personal reasons. Valent did not allege a medical or religious reason, which were the only exemptions permitted under HCH’s flu vaccination directive.  Id. at 44. Despite Valent agreeing to wear a mask during flu season, HCH proceeded to terminate her employment based on Valent’s refusal to take a flu shot. Thereafter, Valent applied for state unemployment insurance benefits, and HCH contested her application claiming Valent’s refusal to take a flu shot was an act of misconduct disqualifying her from receiving full benefits. The Appellate Division disagreed with HCH by concluding that Valent was not disqualified from unemployment benefits because she did not commit any misconduct under the law.  The appellate court held that Valent was within her rights to refuse to be vaccinated on purely secular reasons and was not required to show she qualified for a religion-based exemption.  Id. at 48.

Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, natural hair or hairstyles associated with African Americans, such as dreadlocks, have been historically stereotyped and perceived as unprofessional against Euro-centric standards of beauty. A simple google search of “unprofessional hairstyles” reveals many images of African Americans in natural hair or braids. This sort of discrimination has subjected people across the United States to “dignitary, psychological, physiological, and financial harm.” Federal, state and local government entities have long recognized that policies which “discriminate against traditionally Black hairstyles… qualify as discrimination on the basis of race.” See EEOC Dec. No. 71-2444, 1971 WL 3898, (1971) (“the wearing of an Afro-American hair style by a Negro has been so appropriated as a cultural symbol by members of the Negro race as to make its suppression either an automatic badge of racial prejudice or a necessary abridgment of first amendment rights.”).

Recent increased incidents of discriminatory hair-grooming policies and practices directed towards people of color in schools and the workplace has brought renewed attention on this issue. For example, a white New Jersey referee forced a black high school wrestler to cut his dreadlocks before a match or face disqualification; a 6 year boy in Florida was barred from attending a private Christian academy on his first day of school because his hair extended below his ears; and an 11 year old black girl was sent home from a private Roman catholic school in Louisiana because she broke a rule on wearing hair extensions. In 2018, “54 percent of reported bias incidents in New Jersey were motivated by the victim’s race, ethnicity, or national origin. Of those, approximately 72 percent were anti-Black.” See DCR Guidance

As a consequence of this uptick in hair based discriminatory conduct, a growing movement has developed to better protect Black employees from discrimination in the workplace based on hairstyle thereby recognizing the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. Indeed, this past summer Governor Gavin Newsom of California signed the Crown Act into law making it illegal in California to enforce dress code or grooming policies against hairstyles such as afros, braids, twists and locks.

The exclusive remedy for a worker injured on the job is to pursue workers compensation benefits under New Jersey’s Workers Compensation Act (WCA) in the form of authorized medical treatment, temporary disability benefits and a partial permanency award to the extent applicable.[1]  Relatedly, New Jersey’s Law Against Discrimination (LAD) requires an employer to reasonably accommodate an employee’s disability.  N.J.A.C., 13:13-2.5; Potente v. County of Hudson, 187 N.J. 103, 110 (2006). Given this intersection of the WCA and the LAD, our New Jersey Supreme Court in Caraballo v.  Jersey City Police Dep’t, 237 N.J. 255 (2019) was called on in a case of first impression to determine whether an employee seeking to have his employer cover his double knee replacement surgery after suffering a serious work-related injury could pursue a failure to accommodate disability discrimination case under the LAD. The Court answered that the employee could not.

Looking to federal courts interpretation of the American with Disabilities Act (ADA) for guidance, the Court in Caraballo noted that that neither the text of the ADA nor its regulations “contemplate that an employer should be required to provide a disabled employee with medical treatment in order to restore her ability to perform essential job functions.”  Caraballo, 237 N.J. at 270 quoting Desmond v. Yale-New Haven Hosp., Inc., 738 F.Supp. 2d 331, 350 (D. Conn. 2010). Likewise, the Caraballo Court looked at the Equal Employment Opportunity Commission’s compliance manual, which states that “an employer has no responsibility to monitor an employee’s medical treatment or ensure that s/he is receiving appropriate treatment because such treatment does not involve modifying workplace barriers.” Caraballo, 237 N.J. at 269; Desmond, 738 F. Supp. 2d. at 350 quoting EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Compliance Manual § 92, No. 915.002 (Oct. 17, 2002).  Accordingly, the Caraballo Court held that the double knee replacement surgery sought by Plaintiff Caraballo was neither a modification to the work environment nor a removal of workplace barriers. Rather, “it was a means to treat or mitigate the effects of his injuries, like the treatments at issue in Desmond. We therefore find it consistent with the LAD, the ADA, and their regulations that Caraballo’s total knee replacement surgery cannot qualify as a reasonable accommodation under the LAD.” 237 N.J. at 271.

In ruling against Caraballo, the Court took note of the fact that although Caraballo requested his employer to provide him with double knee replacement surgery, he never used the enforcement mechanism of filing a petition in the workers compensation court to seek entry of an order compelling the employer and its insurer to provide him the surgery. Specifically, he refused to comply with his employer’s requests to see doctors that could “determine unequivocally whether or not he could have surgery.” 237 N.J. at 260.  When the employer’s chosen doctor authorized Caraballo’s knee surgery and told him to schedule a surgery date, he never called. Id. at 261. Even though Caraballo contacted his employer’ “several times to obtain authorization for double knee replacement surgery [he] never sought to enforce his right to the surgery in the workers’ compensation court.” Id.  at 258. Each time he disagreed with what was offered by his employer or refused to comply with their requirements to receive treatment, he failed to file a complaint with the workers’ compensation court. Therefore, regardless of the Court’s ruling that an employer was under no obligation under the LAD to reasonably accommodate a worker by providing him or her with medical treatment, Caraballo’s failure under the WCA to compel the surgery was fatal to his LAD claim. 237 N.J. at 266.

Assembly Bill 1094, which prohibits employers from screening applicants based on the applicant’s salary history, was signed into law on July 25, 2019 after passing in the New Jersey Assembly and Senate earlier this year. Under this new legislation, it shall be an unlawful employment practice for any employer:

(1) To screen a job applicant based on the applicant’s salary history, including, but not limited to the applicant’s prior wages, salaries or benefits; or

(2) To require that the applicant’s salary history satisfy any minimum or maximum criteria

Although the statute of limitations for filing a claim under New Jersey’s Law Against Discrimination (LAD) lapses after two years from the last act of discrimination, a plaintiff may still have a viable LAD claim under the continuing violation doctrine according to a recent Appellate Division decision in Mansour v. Brooklake Club Corp., 2019 N.J. Super. Unpub. LEXIS 1579 (N.J. App. Div. decided July 10, 2019).

Plaintiff Adel Mansour was employed as a cook for Defendant Brooklake Club (Brooklake) between 2003 and 2016. Id. at *2. He alleged that during the time he worked for Brooklake his supervisor harassed him because Mansour was Egyptian and Muslim. Mansour’s supervisor frequently made unwelcome comments to or around Mansour about former Egyptian President Hosni Mubarak and the Muslim Brotherhood and implied Mansour had ties to terrorist organizations and activities. Id. at *2-3. In March 2014, when Malaysia Airlines flight 370 disappeared, Mansour’s supervisor “joked” about the pilot being Egyptian and then hung a large world map in the kitchen on which he wrote “Adel, where is it?” in reference to the lost plane. Id. at *4. Mansour’s supervisor also continuously criticized Mansour for not eating pork and frequently referenced that Muslims do not eat pork for religious reasons, telling Mansour, “…you Muslims don’t know what you’re missing.” Id. at *5-6. Mansour felt singled out by this conduct and told his supervisor to stop on numerous occasions, but the comments continued. Id. at *4-5.

The trial court found Mansour’s hostile work environment claim untimely because most of the alleged discriminatory acts took place outside of the LAD’s two-year statute of limitations. Id. at *5. However, the Appellate Division agreed with Mansour that the trial court “misapplied the continuing violation doctrine and failed to recognize the cumulative pattern of ongoing harassment he suffered directly related to his religion and nationality.” Id. at *7.

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