Articles Posted in Discrimination

Our Appellate Division recently made clear it would not be receptive to sex based hostile work environment claims where it is established that the Plaintiff “gave as good as she got” while working in an environment rife with foulmouthed name calling and invectives. In Bouziotis v. Iron Bar, 2022 N.J. Super. Unpub. LEXIS 635, at *2 (App. Div. Apr. 19, 2022) an appellate court affirmed a trial court’s decision to grant the employer’s motion for summary judgement against a former female employee who alleged she was the victim of a hostile work environment based on her sex.

In September 2016 the Plaintiff-Employee, Lauren Bouziotis (“Bouziotis”) started working as a part-time bartender for Defendant-Employer Iron Bar (“Iron Bar”). Id. Shortly thereafter, Iron Bar’s part owner, Darrell Remlinger (“Remlinger”) stopped addressing Bouziotis by her proper name and instead started referring to her by “alternate names” used to describe someone with an oversized posterior or buttocks area. Id.  Curiously, the court felt that it would be too insensitive of it to actually state in its written decision what the “alternate name” used was.

Specifically, Remlinger used “alternative names” to refer to Bouziotis when publishing the weekly schedule, as well as on six out of forty of Bouziotis’s pay envelopes. In February 2017 Bouziotis complained about Remlinger calling her “alternate names” to General Manager Dave Monllor (“Monllor”), who also reported to Remlinger. Over the course of a year Bouziotis had complained approximately complained thirty (30) times to Monllor. However, Bouziotis never directly asked Remlinger to stop addressing her by these “alternate names.” In May 2018, Bouziotis submitted her two-week notice and a letter of resignation. Bouziotis’s resignation letter failed to state a reason for her resignation nor did the letter make any mention of Bouziotis’s belief she was the victim of sex discrimination. Afterwards, Bouziotis nevertheless proceeded to file a lawsuit against Iron Bar. Bouziotis alleged in her filed complaint that she was the victim of discrimination and wrongful termination, hostile work environment, retaliation, and aiding and abetting harassment under the LAD. Id. at *3. Ironbar answered and subsequently moved for summary judgement as a matter of law against Bouziotis’s claim. Id.

If you are a New Jersey employee and you overhear or learn secondhand that someone is using offensive language to disparage you or others based on protected class characteristics such as race, age, sex, disability, sexual orientation, etc., you may qualify as a victim of a discriminatory based hostile work environment under New Jersey’s Law Against Discrimination (the “LAD”).  This may be true even if the prejudiced language is not directed at a protected class you are a member of.

Generally, when a Plaintiff-Employee alleges a hostile work environment under the LAD based on a legally protected class characteristic (i.e., age, race, sex, national origin, etc.) The Plaintiff-Employee must demonstrate that the Defendant-Employer’s conduct,

(1) would not have occurred “but-for” the Plaintiff-Employee’s protected characteristic,

We congratulate soon-to-be Associate Justice Ketanji Brown Jackson on the Senate vote yesterday confirming her appointment to the Supreme Court of the United States. Justice Brown Jackson, who will be the first woman African American appointed to the Court, is extremely well qualified for the position. Having graduated magna cum laude from Harvard University in 1992 she went onto to Harvard Law School and became supervising editor of the Harvard Law Review.  After law school she served as a law clerk for a United States District Judge, a Judge of the U.S. Court of Appeals for the First Circuit and then for retiring Supreme Court Justice Stephen Breyer.  After her clerkship with Justice Breyer, she went into private legal practice with a couple of law firms and eventually took a position as an assistant federal public defender in Washington D.C. In 2009, Judge Brown Jackson was nominated by President Obama to serve on the United States Sentencing Commission.  This was followed by her appointment in 2012 as a sitting judge to the United District Court for the District of Columbia and then in 2021 to a seat on the United States Court of Appeals for the D.C. Circuit.  Suffice to say Judge Brown Jackson’s well-rounded legal career has been a very illustrious one and we are confident she will be an effective and valued member of the United States Supreme Court once sworn in.

Judge Brown Jackson’s historic appointment to the Court brings to mind the late Martin Luther King, Jr.’s astute observation that, “the arc of the moral universe is long, but it bends toward justice.”  This statement is especially apropos given 155 years have passed since then Chief Justice of the U.S. Supreme Court Roger B. Taney, a virulent racist and slaveowner, read from the bench on March 6, 1857, the decision he authored in Dred Scott v. Sandford 60 U.S. 393 (1857) where he declared Scott, then a slave, “had no rights which the white man was bound to respect” and therefore had no standing to bring a lawsuit in a court of law. By way of background, in 1846, an enslaved Black man named Dred Scott and his wife, Harriet, sued for their freedom in the St. Louis Circuit Court claiming that they should be deemed free persons due to their residence in Missouri, a free territory in the North where slavery was prohibited. Their lawsuit started an 11-year legal battle culminating in Chief Justice Taney reading the most abhorrent decision ever issued by the Supreme Court of the United States.

Taney framed the question before the Court as to whether a black person whose ancestors were brought into this country, and sold as slaves, could be entitled to all the rights, and privileges, and immunities, guaranteed by the Constitution of the United States to any of its citizens. The Court in a 7-2 decision concluded that people of African ancestry were not intended by the founder of this country to be considered as “citizens” as the word is used in the Constitution and therefore could not claim any of the right and privileges which the Constitution provides for its citizens.  Dred Scott further held that because slaves were property, not citizens, the Missouri Compromise of 1820 prohibiting slavery north of the 36’30 line was unconstitutional because it violated citizens’ constitutional rights prohibiting unlawful seizure of property. Many historians believe this decision which virtually made it impossible to stop the spread of slavery in the United States and was widely decried in the North served to hasten the onset of the Civil War. In 1868, the Fourteenth Amendment granting citizenship and equal civil and legal rights. to all persons born in the Unites States, regardless of color, effectively overturned the Dred Scott decision.

This past January 2022, Brian Flores was terminated by the Miami Dolphins after what objectively should be considered three successful seasons as its Head Coach. Initially, after Flores was first fired, Mike Tomlin of the Pittsburgh Steelers remained as the sole Black head coach in the NFL.  Recently, in just this last week, the Miami Dolphins hired Mike McDaniel (bi-racial) and the Houston Texans hired Lovie Smith, who is Black. Naturally, this begs the question: why are there only three Black head coaches in a league where over 70 percent of its players are Black?

According to a recent federal class action complaint filed by Flores in the Southern District of New York against the NFL, with the New York Giants, Miami Dolphins, and Denver Broncos named as co-defendants, the answer lies in statistics which appear to point to the NFL and its 32 white team owners engaging in racially disparate hiring practices. However, Flores’ portrayal of the NFL as a particularly egregious offender of laws promoting equal opportunity hiring practices may not hold under closer scrutiny.

On February 1, 2022, former Miami Dolphin Head Coach Brian Flores filed a federal class action, claiming the clubs failed to hire him based on his Black race. Flores alleges in the complaint violations of both Federal law, Title VII of the 1964 Civil Rights act as well as State law, New Jerseys Law Against Discrimination (the “LAD”). More specifically, Flores claims that the Denver Broncos in 2019 and New York Giants in 2022 held or scheduled “sham” interviews in order to appear compliant with the NFL’s “Rooney Rule.”

On October 5, 2021, Governor Phil Murphy signed Assembly Bill No. 681 (the “Amendment”) into law amending New Jerey’s Law Against Discrimination (LAD) to prohibiting New Jersey government employers from implementing workplace policies mandating employees over the age of 70 to retire. Specifically, the Amendment reads:

Deleting the provision of section 1 of P.L.1938, c.295 (C.10:3- 1) that permits a governmental employer to require retirement when an employee attains a particular age if the employer can show “that the retirement age bears a manifest relationship to the employment in question”.

N.J.S.A. 10:3-1. (emphasis added)

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.

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.

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).

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).

In 1945 New Jersey became the first state since the Reconstruction era to pass comprehensive anti-discrimination legislation with its enactment of the Law Against Discrimination, or as it is more commonly called, the “LAD.”  In enacting the LAD, the NJ Legislature declared “that practices of discrimination against any of its inhabitants…are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3. While the LAD expressly states that “inhabitants” or residents of New Jersey are protected from discrimination, no mention is made as to whether its protections extend to victims of discrimination who reside or work outside of New Jersey. Fortunately, in Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (App. Div. 2019) the New Jersey Superior Court, Appellate Division concluded the LAD could extend in appropriate circumstances to plaintiffs who reside or work outside of New Jersey.

In Calabotta, the plaintiff, an Illinois resident, sued his New Jersey-based former employer, alleging that it wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois.  Specifically, plaintiff Calabotta claimed that the company engaged in “associational” discrimination against him in violation of LAD based on the fact that his wife was then terminally ill with cancer.  As an initial matter the Appellate Division in Calabotta found there to be a conflict between New Jersey law and Illinois law when it came to recognizing “associational” discrimination as a viable cause of action.  It was recognized in New Jersey. O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249, 255 (App. Div. 1998) (where a plaintiff is wrongfully discharged for associating with a member of a protected group under the LAD, it is the functional equivalent of being a member of that same protected group). By contrast, Illinois law had not recognized a cause of action for associational discrimination.

In deciding whether LAD covered plaintiff Calabotta’s failure to promote and wrongful discharge claims, the Court decided the factors spelled out in the Restatement (Second) of Conflicts of Laws (the “Second Restatement”) were applicable:

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