Discrimination

November 29, 2024

New State Law Requires Pay Transparency by New Jersey Employers

Disparities in wages and salaries remain a major form of workplace discrimination. New Jersey employment laws have tried to address this issue, but it can be difficult to identify wage discrimination, especially when employers attempt to prevent discussion about wages and salaries. The New Jersey Legislature passed a law in September 2024 that requires pay transparency. Covered employers will be required to include wage or salary information in job postings and announcements for transfer opportunities. The law does not allow employees to file lawsuits for violations, but it does impose civil penalties. It will take effect on June 1, 2025.

The pay transparency law applies to New Jersey employers with at least ten employees over at least twenty weeks in a year. Its definition of “employer” is fairly broad. Employment agencies and job placement agencies fall under the definition if they meet the minimum employee requirement.

The law sets two main requirements for covered employers. The first involves the disclosure of pay in postings for “new jobs and transfer opportunities.” It applies to both external postings, such as those posted on job search websites and other resources, and postings made internally within the company. Postings must include:
– The hourly wage or salary for the job, or the wage or salary range; and
– A “general description” of benefits and other compensation for which an employee would be eligible in the listed job.
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November 8, 2024

How AI Can Cause Inadvertent Disability Discrimination in New Jersey Workplaces

by Resnick Law Group, P.C.

The Americans with Disabilities Act (ADA) of 1990 protects workers against discrimination because of injuries, illnesses, and other conditions that impair their daily lives. The statute prohibits employers from discrimination based on disability and requires them to provide reasonable accommodations to help employees with disabilities perform their jobs. Compliance with the ADA often requires careful consideration of employees’ needs on a case-by-case basis. The Equal Employment Opportunity Commission (EEOC) has addressed concerns about employers’ use of artificial intelligence (AI) systems to handle various tasks once left to human employees. The agency has identified areas of concern where an AI system could lead to ADA violations.

Protections Under the ADA

An employer may not “discriminate against a qualified individual on the basis of disability” in matters like hiring, promotions, termination and layoffs, compensation, and other aspects of employment. The ADA prohibits “medical examinations and inquiries” intended to assess whether an individual has a covered disability, or the extent of such a disability.

The statute imposes an obligation on employers to make reasonable accommodations for “the known physical or mental limitations” of an employee or job applicant who is otherwise able to perform their job duties. The only exception is when an employer can show that an accommodation “would impose an undue hardship” on the employer’s business. Accommodations that have been deemed “reasonable” include wheelchair access, flexible scheduling, and reading assistance for employees with visual impairments.
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November 1, 2024

Third Circuit Allows Religious Discrimination Claim Involving Vaccine Mandate to Proceed

by Resnick Law Group, P.C.

Both private and public employers have obligations to their employees under New Jersey employment laws. These include obligations to pay a minimum wage and to maintain a workplace reasonably free from discrimination and harassment. Public employers, such as state and local agencies and officials, may also have a duty to respect their employees’ constitutional rights. An employee who believes their employer has discriminated against them because of their religion can bring a claim under a state or federal employment statute. If they work for a public employer, they may also be able to claim a violation of their First Amendment right to freedom of religion. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled in favor of an employee’s religious discrimination claim. Rather than suing under an employment statute, the employee alleged violations of the First Amendment’s Free Exercise Clause.

Public employees may be able to assert claims against their employers for violations of certain constitutional rights. Many claims rely on 42 U.S.C. § 1983, which allows a person to sue for deprivation of constitutional rights for actions taken “under color of any statute” or other law. Section 1983 claims are common in a wide variety of incidents involving government officials or agencies, from police brutality to employment discrimination.

It is also possible to allege a constitutional violation directly as a cause of action. These types of claims often involve First Amendment rights. For example, public employers do not have as much leeway to restrict their employees’ speech as private employers do. Public employees may be able to assert claims involving violations of their rights to free speech, freedom of religion, or other rights under the First Amendment.
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October 25, 2024

What the Four-Fifths Rule Means in New Jersey Employment Discrimination Cases Involving AI

by Resnick Law Group, P.C.

Employment discrimination on the basis of factors like race, religion, sex, sexual orientation, gender identity, and disability is unlawful under New Jersey employment law. Broadly speaking, courts have identified two types of unlawful employment discrimination: discriminatory intent and disparate impact. Cases based on discriminatory intent often involve overt bias. In disparate impact cases, an employer may violate the law if their policy or practice has an outsized adverse impact on a protected group, even if it appears outwardly neutral. A group of federal agencies developed a guideline several decades ago, known as the Four-Fifths Rule, for determining when a policy or practice has too much of a disparate impact on a protected group. While this rule significantly predates the current use of artificial intelligence (AI) in employment, it provides a useful guide for assessing when an AI tool might violate employment laws.

Title VII of the Civil Rights Act of 1964 is the main federal statute dealing with employment discrimination. It mentions five protected categories by name: race, sex, religion, color, and national origin. Congress amended the statute in 1978 to add discrimination based on pregnancy and childbirth to the definition of sex discrimination. The U.S. Supreme Court has held that sex discrimination includes discrimination based on sexual orientation and gender identity.

The Four-Fifths Rule is based on uniform guidelines developed by four federal agencies in 1978: the Equal Employment Opportunity Commission (EEOC), the Civil Service Commission, the Department Of Labor, and the Department of Justice. Although it includes the word “rule,” the Four-Fifths Rule is more like a guideline that provides an idea of when an employment practice might run afoul of the law.
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August 23, 2024

New Jersey Court Rejects Employee’s FMLA Claim

by Resnick Law Group, P.C.

If you believe you’ve been unfairly treated at work, particularly if you’ve been denied leave under the Family and Medical Leave Act (FMLA) or retaliated against for requesting it, the Resnick Law Group is here to help. Understanding your rights under the FMLA is crucial, and if those rights are violated, you may have grounds for legal action.

In a recent case, an employee claimed her employer violated the FMLA in two ways: first, by denying her request for FMLA leave, and second, by retaliating against her for attempting to take that leave. She alleged that her employer intensified a hostile work environment, increased harassment, and reassigned her to roles for which she was unqualified. Unfortunately, the court found her claims too vague and inconsistent to proceed.

The FMLA is designed to help employees balance work with personal or family needs, allowing them to take reasonable leave for serious medical conditions without fear of losing their jobs. The law sets clear expectations for employers, ensuring that eligible employees can take up to 12 weeks of leave within a year. After this leave, the employee must be reinstated to their original job or a comparable one with the same pay, benefits, and working conditions.

However, the FMLA doesn’t just grant leave—it also protects employees from retaliation for using it. This means your employer can’t treat you negatively, such as by demoting you or increasing your workload unfairly, just because you took or requested FMLA leave.

August 16, 2024

Federal Court Weighs in on Employee’s Discrimination Case Based on COVID-19 Vaccination Requirements

by Resnick Law Group, P.C.

Employers have an affirmative duty to respect workers’ rights. However, due to various pressures and biases, employers often fail to live up to their duty. If you feel that your rights as an employee have been violated, particularly if you’ve faced discrimination or unfair treatment related to COVID-19 policies, the recent case of Srilatha Kuntumalla vs. Bristol Myers Squibb Company (“BMS”) may provide you with the guidance you’re looking for.

The Facts of the Case

In this case, Srilatha Kuntumalla, along with several other employees, filed a lawsuit against BMS after being terminated for refusing to comply with the company’s COVID-19 vaccination mandate. Kuntumalla and her co-plaintiffs argued that BMS did not follow its own exemption policies and that their terminations were a result of the company’s failure to accommodate their religious beliefs and medical concerns regarding the vaccine.

August 8, 2024

Third Circuit Holds Job Applicant’s Discrimination Case Was Improperly Dismissed

by Resnick Law Group, P.C.

Most New Jersey workers know that state and federal employment laws protect them from illegal discrimination. However, what fewer people know is that these very same laws also provide protection to job applications; that is, individuals who applied for an open position but were not selected for employment.

Recently, the United States Court of Appeals, Third Circuit, issued an opinion in an age and disability discrimination case that highlights this longstanding principle. In the case, Porter v. Merakey, the court reversed the lower court’s dismissal of Porter’s claims, finding that the lower court applied incorrect legal principles.

The Facts of the Case

Porter had previously suffered an injury to his leg, which caused him to walk with a limp and required that he stretch his leg out straight while sitting. Eight years after his injury, at the age of 66, Porter applied for an open position at Merakey, a provider of behavioral health services. He met the minimum requirements for the job and was invited to interview for the position.

July 26, 2024

Federal Court Dismisses Attempt to Stop New EEOC Rule

by Resnick Law Group, P.C.

A new rule from the Equal Employment Opportunity Commission (EEOC) seeks to implement the Pregnant Workers Fairness Act (PWFA), but it has faced opposition. The PWFA fills an important gap in federal pregnancy discrimination law. New Jersey employment law has long required employers to provide reasonable accommodations for workers who are pregnant, have recently given birth, or are dealing with medical conditions related to either pregnancy or childbirth. Federal law did not have this requirement, except for a possible interpretation of the Americans with Disabilities Act (ADA). The PWFA expressly requires reasonable accommodations in these circumstances. Several state attorneys general filed suit against the EEOC to blog the new PWFA rule based on the EEOC’s inclusion of abortion and related services. A federal court dismissed the lawsuit in June 2024, finding that the plaintiffs lacked standing to sue. That lawsuit, however, is not the only challenge to the rule.

The PWFA took effect on June 27, 2023. The EEOC published its rule implementing the PWFA in the Federal Register on April 19, 2024. The rule broadly interprets the PWFA’s requirement that employers provide reasonable accommodations based on “pregnancy, childbirth, and related medical conditions.” It is similar to the ADA’s reasonable accommodations process, with some important differences. The rule places a fairly heavy burden on employers to accommodate workers’ needs.

Seventeen state attorneys general filed suit against the EEOC on April 25. They sought an injunction preventing the PWFA rule from taking effect. Much of their objections stemmed from the inclusion of abortion in the rule’s definition of “pregnancy, childbirth, or related medical conditions.” The rule would require employers to make reasonable accommodations for employees who have the procedure or are dealing with complications related to the procedure.
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June 28, 2024

EEOC Settles Lawsuits Against New Jersey Employers Over Title VII Data Collection

by Resnick Law Group, P.C.

Federal and New Jersey employment laws protect workers from discrimination on the basis of factors like race, sex, and religion. State law includes more protected categories than federal law, but both statutes give rather broad authority to government agencies to investigate alleged unlawful practices by employers. At the federal level, Title VII of the Civil Rights Act of 1964 authorizes the Equal Employment Opportunity Commission (EEOC) to pursue enforcement actions directly or give employees approval to file civil lawsuits. The statute directs certain employers to file reports with the EEOC containing demographic data about their employees. The agency recently filed lawsuits against at least fifteen employers, including two in New Jersey, for failing to file these reports on time. It settled both New Jersey lawsuits within a few weeks of filing.

Section 709(c) of Title VII and EEOC regulations require employers with one hundred or more employees to file annual reports regarding the gender and race/ethnicity of their workforces. The EEOC states that it uses the data in these reports to assist in enforcement and research activities.

The EEOC does not require employers to keep records in any specific form. It does, however, require covered employers to use a form known as the EEO-1 Component 1 data report to submit demographic information. EEOC regulations note that employers’ recordkeeping practices should comply with other state and federal laws regarding discrimination and employee privacy.
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June 7, 2024

New Jersey Supreme Court Rules That Broad Non-Disparagement Agreements Are Against State Law

by Resnick Law Group, P.C.

Employers often use contractual provisions to prohibit employees from disclosing information about discrimination and harassment claims. Non-disclosure clauses can bar employees from revealing information about legal disputes. Non-disparagement provisions often have a much broader scope, prohibiting negative statements about the other party. These provisions may prevent employees from warning others about their experiences. A New Jersey employment law enacted in 2019, known as the “#MeToo law,” bans non-disclosure agreements in employment contracts and settlements involving harassment, discrimination, or retaliation claims. In May 2024, the New Jersey Supreme Court ruled that non-disparagement agreements also violate this law.

New Jersey law does not specifically define a “non-disparagement agreement.” The New Jersey Supreme Court relied on Black’s Law Dictionary, which defines it as “an agreement…that prohibits criticism by one party on the other.” Non-disparagement agreements might specifically prohibit “defamatory” information, which by definition means that information is untrue. They may also use more generic terms like “harmful to the parties’ business” or “harmful to their business or personal reputation.” Clauses that use this kind of language can bar people from making truthful statements that describe harmful experiences.

The New Jersey Legislature enacted the #MeToo law in the wake of the movement that seeks, in part, to raise awareness of sexual harassment and abuse in workplaces around the world. The law bans non-disclosure agreements in employment contracts and settlement agreements that would prevent people from speaking out about certain violations of antidiscrimination laws. The New Jersey Supreme Court states in its ruling that the law “was enacted in the wake of the ‘#MeToo’ movement to protect individuals who suffer sexual harassment, retaliation, and discrimination from being silenced by settlement agreements and employment contracts.”
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