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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)

On September 24, 2021, Governor Phil Murphy signed into law Legislative Bill A-2617/S-2998 requiring employers with at least 50 employees to provide a hiring preference to an employee injured in a work-related injury who has reached maximum medical improvement and cannot return to the employee’s former position with that employer (hereafter the “WC Reinstatement Law”) Specifically, WC Reinstatement Law’s addition to Title 34 of the New Jersey Workers Compensation Laws (WCL) requires that:

Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.

The reference to “maximum medical improvement” (MMI) is a term that is used when additional treatment will no longer improve the medical condition of the injured worker. Under the WCL a worker injured on the job is entitled to receive all necessary and reasonable medical treatment, prescriptions and hospitalization services related to the work injury are paid by the employer’s insurance carrier or directly by the employer if they are self-insured. The employer has the right to designate the authorized treating physician for all work-related injuries. The worker, in some cases, may be left with either partial permanent injuries or total permanent injuries.  Workers compensation authorized medical treatment, and temporary total disability benefits if applicable, are terminated when the worker is released to return to work in some capacity or if he or she has reached MMI.

An employer’s leaking of an employee’s confidential medical information may give rise to a violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d).  “The purpose of the ADA is to ‘invoke the sweep of Congressional authority . . . in order to address the major areas of discrimination faced day-to-day by people with disabilities,’ . . . .” Carparts Distrib. Ctr. v. Automotive Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994), quoting 42 U.S.C § 12101(b). Congress enacted the statute to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). “Given the remedial purpose underlying the ADA, courts should resolve doubts about such questions in favor of disabled individuals.” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003).

The ADA sets strict rules to maintain the confidentiality of the medical information of job applicants, persons who have been offered jobs, and employees. 42 U.S.C. § 12112(d). The statute also restricts what employers may ask employees and prospective employees about their health, when, and for what purpose that information may be used. Id. With respect to an employee, an employer may not, without limitation, “require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). An employer may make inquiries into an employee’s ability to perform job- related functions. 29 C.F.R. § 1630.14(c). However, an employer’s medical inquiries (and examinations) of employees are unlawful, except to the extent that they are explicitly authorized by the ADA. 29 C.F.R. § 1630.13(b). An employer who oversteps their bounds and makes an overbroad inquiry into an employee’s medical information commits a stand-alone violation of the statute. See Downs v. Massachusetts Bay Transp. Auth, 13 F. Supp. 2d 130, 138 (D. Mass. 1998).

Information garnered in response to an employer’s medical inquiries must be maintained in a separate medical record, which must be treated as confidential, and may be disclosed only to a narrow subset of people. 29 C.F.R. § 1630.14(c)(1). “Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations . . . .” 29 C.F.R. § 1630.14(c)(1)(I). Information obtained as part of an employer’s medical inquiry may not be used for any purpose inconsistent with a legitimate medical inquiry. 29 C.F.R. § 1630.14(c)(2). A violation of the ADA’s confidentiality mandate is also a stand-alone violation of the statute as well. See Stark v. Hartt Transp. Sys., 37 F. Supp. 3d 445, 473 (D. Me. 2014).  See also Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa. 1994) (employer conducted unlawful medical inquiry when it searched the office of an employee whom it knew was sick and discovered a letter indicating the employee had AIDS).

New Jersey law prohibiting discrimination is not limited to the workplace. For example, under the New Jersey Law Against Discrimination (LAD) townhouse/condominium Homeowner Associations (HOAs) and Landlords must reasonably accommodate the disabilities of those who reside within their properties or make use of their common areas Specifically, they are required to make, “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2).  A landlord, board, association, or other housing provider may deny a request for a reasonable accommodation for a disability request only if it can prove following an individualized fact sensitive assessment, that the request is unreasonable under the particular circumstances. Factors to be considered in determining whether an accommodation request is unreasonable include, but are not limited to, whether the accommodation or modification would impose an undue administrative or financial burden on the board or association or would fundamentally alter the nature of the board or association’s operations. https://www.state.nj.us/dca/divisions/ codes/publications/ pdf_lti/guidance.pdf

In Mauro v. Penwal Affordable Corp., the New Jersey Division of Civil Rights found probable cause of discrimination when Penwal Affordable Corp (“Penwal”), a housing provider for senior citizens, failed to reasonably accommodate resident Madonna Mauro (“Mauro”) with a handicap parking space. DCR Docket No. HB60HW-64910 (Div. on Civil Rights 2015). Mauro requested Penwal to reasonably accommodate her need for accessible parking by specifically reserving an extra handicap parking space for her. Id. Penwal denied Mauro’s accommodation, arguing that such an accommodation would lead to further requests resulting in disruptions of parking effecting all residents. Id. The court disagreed with Penwal stating, “the housing provider must evaluate each request on an individual basis and not merely speculate that a suggested accommodation is not feasible based on an imagined parade of horribles.” Id. Ultimately, Penwal’s failure to engage in an interactive dialogue with Mauro about the parking situation constituted a failure to reasonably accommodate Mauro’s physical disability in violation of the LAD. Id.

Another example under LAD of HOAs, boards, and landlords being required to provide reasonable accommodations is found when residents or tenants are need of service dogs to assist with their disabilities. Specifically, N.J.S.A. § 10:5-29.2 provides in part:

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

Christians

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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