Articles Posted in Discrimination

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The Appellate Division of the Superior Court of New Jersey published an opinion on May 20, 2019, in which it reversed an Atlantic County decision dismissing a Law Against Discrimination (LAD) claim brought by a group of employees against the Borgata Casino, Hotel, and Spa in Atlantic City.

The employees, who were all hired to work as servers for the “Borgata Babes” program, allege that Borgata engaged in disparate treatment and sexual harassment, among other LAD violations, through its implementation of personal appearance standards which focus primarily on employees’ weights. Enforcement of these personal appearance standards was done through occasional weigh-ins, which ensured employees did not go above a set weight range during their employment. The standards were imposed on women who were pregnant as well as on women who were undergoing medical treatments that caused weight gain.

This week’s decision comes after a decade of litigation in which the claims were initially dismissed by the trial court. Schiavo v. Marina Dist. Dev. Co., LLC, 2013 N.J. Super. Unpub. LEXIS 2093. That initial dismissal was reversed in 2015 when the Appellate Division held that the trial judge erred in finding the record insufficient for a showing of a prima facie claim of sexual harassment hostile work environment discrimination. Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015).

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Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, recent attention has been given toward the issue of whether it is illegal discrimination for employers to ban certain hairstyles traditionally held by and associated with African-Americans. In New Jersey, a particularly brutal story surfaced in the news in December 2018 about a 16-year old African-American wrestler named Andrew Johnson who was forced to unnecessarily cut off his dreadlocked hair just minutes before his wrestling match by a Caucasian referee and in front of a gymnasium full of spectators. This story prompted outrage and stirred controversy over discriminatory hair-grooming policies and practices in schools and in the workplace.

There is a growing movement toward protection against discrimination based on hairstyle and texture in recognition of the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. In February 2019, the New York City Commission on Human Rights instituted a law that bans workplace discrimination based upon hairstyle. Just this week, the California Senate passed the “CROWN” Act (Create a Respectful and Open Workplace for Natural Hair), which seeks to add hairstyle and texture associated to race with California’s anti-discrimination laws. The bill, which was introduced by Senator Holly J. Mitchell, will now move on to the California State Assembly.

Speaking before the Senate’s vote, Mitchell noted that African-American men and women have had to go through expensive and dangerous chemical treatments to alter their hair to conform with Euro-centric norms in the workplace.

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Clear evidence the seismic effects of the national #Me Too movement has reached the shores of New Jersey occurred when New Jersey Governor Phil Murphy recently signed into law S.121 which effectively stops employers from requiring employees to sign nondisclosure confidentiality agreements – commonly referred to as “NDAs” – when settling employment discrimination, harassment, or retaliation claims. The use of NDAs has become a notorious legal tool used to protect serial harassers and abusers from the shaming cleanse of public disclosure. Further, the law also severely limits an employer’s ability to impose forced arbitration clauses and jury waiver clauses on its employees.

Following other states such as California which have banned the use of NDAs in settlement agreements and employment contracts, proponents of S. 121 argue that it adds new protections for victims of serial abusers in the workplace. “Non-disclosure agreements have, for a long time, been used to silence and intimidate the victims of sexual assault and harassment,” said Senator Weinberg (D-Bergen), one of the law’s chief architects. “Too many victims have been forced to suffer in silence for far too long, leaving abusers to continue to prey on countless women with impunity. Limiting these so-called ‘confidentiality agreements’ will help lift the secrecy that allows abusers to carry on abusing and make our workplaces safer for everyone.”

S.121 has two important components. First, it renders any term in an employment contract or settlement agreement unenforceable against a current or former employee if it “has the purpose of concealing the details relating to a claim of discrimination, retaliation, or harassment.”  Importantly, these broad limitations on NDAs apply to new agreements which are executed on or after the law’s effective date of March 18, 2019.  While the new law does not appear to apply retroactively, the law’s restrictions would apply to new or renewed agreements with existing employees, and to modifications of previous agreements. However, NDAs regarding non-public trade secrets and proprietary information as well as non-competition provisions are specifically carved out from the law’s reach.

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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.