In the workplace the New Jersey Law Against Discrimination (LAD) generally prohibits disparate (different) treatment of workers based on or motivated by their actual or perceived race, religion, disability, ancestry/national origin, gender, sexual orientation, gender identity or expression, and other protected characteristics. Establishing a disparate treatment claim typically requires proof of an employer’s discriminatory animus or intent to treat members of a protected class differently. An exception to proving an employer’s intention to discriminate under the LAD is found in failure to accommodate disability discrimination claims where the employer can be held liable under the LAD for unreasonably failing to accommodate a request for a disability accommodation; this is akin to a negligence standard of liability. Another claim of discrimination not requiring intentional conduct are “disparate impact” discrimination claims which prohibit an employer from enacting and enforcing policies or practices that are facially neutral in their treatment of different groups but in fact cause hardship on one protected group more so than others [disparate impact] and cannot be justified by a business necessity. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 81-82 (1978). Unlike most claims of disparate treatment, “disparate impact” claims do not require proof of a discriminatory motive. Id. The New Jersey Supreme Court first acknowledged the existence of a disparate impact cause of action under the LAD in Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391 (2005). Recently, the New Jersey Division on Civil Rights (DCR) has proposed new rules relating to claims of disparate impact discrimination brought under the LAD where employers will be required, among others, to establish a “substantial, legitimate, nondiscriminatory interest” when defending policies or practices which disproportionately impact a particular protected class.

In Gerety, the Court recognized that certain practices and policies can appear facially neutral while nonetheless preventing employees with protected characteristics from enjoying the benefits of the employer. Most significantly, in Gerety the Court held that a disparate impact discrimination claim does not require the employee to demonstrate proof of the employer’s discriminatory motive, but rather requires a showing that a facially neutral policy “resulted in a significantly disproportionate or adverse impact on members of the affected class.” 184 N.J. at 399. To establish a prime facie case of disparate impact discrimination, the Court stated that an employee must make a showing using empirical evidence that (a) an employer policy (b) causes (c) a disparate impact. 42 U.S.C. 2000e-2(k). Next, the employer must rebut this by establishing before the court that the policy is job related and consistent with a business necessity. Id. Even if the employer is successful in doing this, the employee can still prevail by then demonstrating that a viable alternative employment practice or policy exists. Id.

To codify the framework set out in Gerety into statutory law under N.J.S.A. 10:5-8, -12 and -18, the DCR has proposed the enactment of N.J.A.C. 13:16-1, et. seq.  These new rules set forth the legal standard and the burdens of proof that are required in disparate impact discrimination claims. Furthermore, these new rules seek to clarify the principles set out in Gerety and in preceding decisions by both New Jersey state and federal courts regarding disparate impact discrimination. For example, the proposed new rules require an employer to rebut a prima facie showing by establishing that a practice or policy is necessary to achieve a “substantial, legitimate, nondiscriminatory interest,” rather than a “legitimate business necessity.” N.J.A.C. 13:16-2.1. This difference in language and context would allow the courts to more easily account for claims of disparate impact discrimination brought against non-business entities, such as non-profit organizations and government agencies. Additionally, the new rules define “substantial interest” as a core interest of the business that has a direct relationship to the function of that business; “legitimate interest” as a practice or policy that is genuine, rather than false or pretextual; and “nondiscriminatory interest” as a policy or practice that does not itself discriminate based on a protected characteristic. Id. Providing a uniform standard such as this would eliminate unnecessary litigation, which in turn would greatly benefit prospective victims of discrimination and employers seeking to comply with the LAD.

If adopted into law, N.J.A.C. 13:16 will more easily allow individuals and classes of individuals who have been discriminated against via facially neutral policies to have the opportunity to prove the merits of their claims at trial. Hopefully, legislation such as N.J.A.C. 13:16 will further incentivize employers to undertake prompt remedial measures to eradicate workplace discrimination arising out of company practices and policies.

If you believe you are or have been a victim of unlawful workplace discrimination or retaliation you are urged to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to protecting the rights of New Jersey employees.

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