Articles Posted in Discrimination

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Federal law and New Jersey state law generally prohibit wage discrimination, in which an employer pays different wages to employees of different genders who hold substantially similar positions or have substantially similar job duties. As the issue of wage disparity between male and female employees gains attention nationwide, understanding these laws is critically important. It can be difficult to establish that one employee has the same job as a higher-paid employee. Some employers, however, prevent workers from ever reaching that point by prohibiting their employees from disclosing or inquiring about wage information with co-workers. This practice, commonly known as “pay secrecy,” remains common despite laws prohibiting it at the federal and state levels.

The federal Equal Pay Act amended the Fair Labor Standards Act (FLSA) to ban payment of different wages to male and female employees for jobs requiring “equal skill, effort, and responsibility…performed under similar working conditions.” 29 U.S.C. § 206(d). The law allows exceptions for seniority, merit, and quantitative or qualitative factors, and the broadly-construed “differential based on any other factor other than sex.” Id. A bill that would have limited this last category, the Paycheck Fairness Act, died in the Senate in 2014. New Jersey law merely states that employers may not discriminate in the payment of wages based on sex, and it allows exceptions for any “reasonable factor or factors other than sex.” N.J. Rev. Stat. 34:11-56.2.

In order to assert their rights under federal or state wage discrimination laws, employees must know that a difference in wages exists. Many employers keep that from happening by enacting pay secrecy policies. Among private-sector employees, estimates of how many are subject to such policies range from one-third to more than 60 percent. Penalties for discussing pay rates or inquiring about pay rates can include anything from reprimands to termination.

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The Americans with Disabilities Act (ADA) of 1990 prohibits employers from discriminating against employees on the basis of “disability,” as defined by the statute, and requires them to provide “reasonable accommodations” to disabled employees and job applicants. 42 U.S.C. §§ 12102, 12112(b)(5)(A). The ADA’s definition of “disability” includes a wide range of conditions that “substantially limit[] one or more major life activities.” Id. at § 12102(1)(A). Courts have found that infection with the human immunodeficiency virus (HIV) may constitute a disability under the ADA. The Equal Employment Opportunity Commission (EEOC) recently published two guidance documents addressing the rights of HIV-positive employees and job applicants.

The U.S. Supreme Court first ruled that an HIV infection may constitute a disability under the ADA in 1998, although it did so without a clear majority of justices. Bragdon v. Abbott, 524 U.S. 624, 655 (1998); see also Fiscus v. Wal-Mart Stores, 385 F.3d 378, 383 (3rd Cir. 2004). In order to qualify for ADA protection, an individual must demonstrate a limitation on their “life activities” caused by their condition. The regulations implementing the ADA state that, by “substantially limit[ing] immune function,” an HIV infection can qualify as a substantial limitation. 29 C.F.R. § 1630.2(j)(3)(iii).

The New Jersey Law Against Discrimination (NJLAD) also protects employees and job applicants from disability discrimination, including discrimination based on an HIV infection. The definition of “disability” under the NJLAD expressly includes “AIDS or HIV infection.” N.J. Rev. Stat. 10:5-5(q). Unlike the ADA, the NJLAD’s definition of “disability” does not require evidence of substantial impairment of life activities. The NJLAD also requires employers to make reasonable accommodations for employees with disabilities, unless doing so would create an “undue hardship.” N.J.A.C. § 13:13-2.5(b).

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The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., protects employees against multiple forms of discrimination by employers. It is one of the most expansive anti-discrimination laws in the country. The New Jersey Supreme Court heard oral arguments in early December 2015 in a case, Smith v. Millville Rescue Squad, alleging discrimination based on marital status. The plaintiff specifically claims that the defendant fired him because he was getting divorced. The case involves the question of whether the plaintiff has established sufficient grounds for a claim under the NJLAD, and also whether divorce is included in the NJLAD’s protected category of “marital status.”

An employer may not discriminate against an employee, according to the NJLAD, on the basis of “marital status, civil union status, [or] domestic partnership status.” N.J. Rev. Stat. § 10:5-12(a). This applies to hiring, firing, and other decisions related to a person’s employment. The statute does not define “marital status,” so one could argue that the scope of protection is limited to situations in which an employer prefers an unmarried employee to a married one, or vice versa. It may not be clear, from that standpoint, whether an ongoing divorce falls under the statute’s concept of “marital status.” This is the central issue now presented in the Smith case. The trial court dismissed the plaintiff’s lawsuit, but the appellate court partly reinstated it. Smith v. Millville Rescue Squad, No. A-1717-12T3, slip op. (N.J. App., Jun. 27, 2014).

The plaintiff in Smith worked for the defendant for about 17 years, starting as an emergency medical technician (EMT) and eventually rising to the position of director of operations. His wife was a volunteer for the defendant, and they met through work. She generally worked in a subordinate position to him. After eight years of marriage, they separated in early 2006. The plaintiff had reportedly had an affair with another employee, who voluntarily resigned around the same time. The defendant learned about both the affair and the divorce at some point during this time period.

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Employment discrimination against a person based on pregnancy, medical conditions associated with pregnancy, or recent childbirth is prohibited under state and federal law. The question of whether employers are obligated to provide reasonable accommodations for pregnant workers, or workers who have recently given birth, however, remains unsettled in many jurisdictions. The Fair Labor Standards Act (FLSA) requires employers to allow workers who are breastfeeding their newborns to express breast milk at work, a process that requires a sanitary and private environment. This federal statute does not apply to smaller employers, however, and New Jersey has no statute specifically addressing the issue. The termination of a woman from her job earlier this year, allegedly based on her request for additional breaks during the work day to express milk, has brought renewed attention to this issue.

The Americans with Disabilities Act (ADA) of 1990 requires employers to provide “reasonable accommodations” for workers with disabilities. 42 U.S.C. § 12112(b)(5). Pregnancy is not, by itself, considered a disability under the ADA, but the Pregnancy Discrimination Act (PDA) of 1978 prohibits employers from treating a pregnant employee differently from an employee with a comparable temporary disability. A prohibition on discrimination is different, however, from an obligation to accommodate an employee’s condition. The ADA Amendments Act (ADAAA) of 2008 expanded the definition of “disability” to include many conditions commonly associated with pregnancy, to the extent that they “substantially limit[] a major life activity.” 29 C.F.R. Appendix to § 1630.2(h).

Denying an employee the opportunity to express breast milk while at work does not constitute pregnancy discrimination under the PDA, nor is it a disability for which an employer must make an accommodation under the ADAAA. The Patient Protection and Affordable Care Act (ACA) of 2010 offers some protection. It amended the FLSA to require employers to allow “reasonable break time” for breast milk pumping for up to one year after the child’s birth, and to provide employees with a private location “other than a bathroom” to do so. 29 U.S.C. § 207(r)(1).

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A New Jersey federal lawsuit, Clem v. Case Pork Roll Co., No. 3:15-cv-06809, complaint (D.N.J., Sep. 11, 2015), alleges unlawful discrimination on the basis of disability under the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq., and the New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq. The case raises two important points regarding disability discrimination. First, the alleged disability in question is obesity and certain related conditions. No court has ever found obesity, in and of itself, to be a disability covered by the ADA, but recent amendments to that law, as well as court decisions and other developments, raise the possibility that conditions related to obesity could qualify. Additionally, the plaintiff’s husband, not the plaintiff, is the one with the alleged disability, but the ADA allows family members to assert claims in certain circumstances.

The plaintiff’s statement of the case includes a number of unpleasant physical details related to her husband’s condition. She states that her husband worked as the comptroller for the defendant, a pork product manufacturing and distribution company. In 2008, the defendant hired her as a part-time administrative assistant for her husband.

According to the complaint, the plaintiff’s husband, who weighed about 420 pounds at the time, underwent gastric bypass surgery in October 2010. This resulted in multiple side effects, including “extreme gas and uncontrollable diarrhea.” Clem, complaint at 3. The symptoms grew worse, the plaintiff claims, in 2013, resulting in numerous complaints from the company’s president to her and her husband. Both the president and the owner allegedly began harassing the plaintiff about her husband’s condition. The company terminated the plaintiff’s husband at the end of February 2014, and the plaintiff resigned the same day.

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A federal lawsuit brought by a job applicant against a hotel and its owner claims unlawful discrimination on the basis of disability. Anderson v. HotelsAB, LLC, et al., No. 1:15-cv-00712, complaint (S.D.N.Y., Jan. 30, 2015). The plaintiff alleges that the hotel owner stated during her job interview that he would not hire her because she has a disabled son. Her complaint alleges a single cause of action for employment discrimination under the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq. It names the two limited liability companies (LLCs) that own and operate the hotel, as well as the individual owner of the LLCs, as defendants. In late August 2015, a judge denied a motion by the defendants to dismiss the case.

The plaintiff applied for a job as controller for the defendants, which own and operate a hotel located on Shelter Island, near the eastern end of Long Island. According to the plaintiff’s complaint, the job would involve working from the defendants’ Manhattan office from October through April, and at the hotel on Shelter Island from May through September. The plaintiff lived in Connecticut at the time she applied for the job.

After several telephone interviews, the plaintiff visited the hotel in August 2014 for an in-person interview with several hotel officers. The hotel owner arrived to meet her and allegedly began “posing extremely personal questions” about her marriage and living arrangement and repeatedly calling her a “crazy person.” Anderson, complaint at 5. When asked about her “ideal job,” the plaintiff states that she mentioned running a nursing home because of her disabled son, who lives in Maine. She alleges that the owner “abruptly ended the interview” at this point, telling her that she could not “devote adequate time to her professional responsibilities.” Id.
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The Equal Employment Opportunity Commission (EEOC) recently celebrated the 25th anniversary of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq. The ADA helps ensure that people with disabilities have access to public buildings, public transportation, and private businesses considered “public accommodations.” It also protects disabled workers against discrimination and requires employers to provide them with reasonable accommodations. The difficulty tends to come in the applicability of the ADA’s definition of “disabled” to a particular worker, or the reasonableness of a requested accommodation under its specific circumstances. It is worth taking a moment to review the ADA and the ways it has been interpreted and adapted over the years.

In numerous ways, the ADA has literally changed the landscape of the country. Title II of the ADA requires government buildings and public transportation to allow access by disabled individuals. This might include wheelchair ramps, elevators, or assistance for people with impaired vision or hearing. Title III establishes similar requirements for “public accommodations”–private businesses that offer products or services to the general public, such as hotels, restaurants, theaters, grocery stores, gas stations, bus depots, libraries, parks, schools, day care centers, and golf courses. 42 U.S.C. § 12181(7). Title IV requires telecommunications service providers to make services available to people with hearing and speech impairments. 47 U.S.C. § 225.

Title I of the ADA prohibits employment discrimination based on disability. It also requires employers to make reasonable accommodations for disabled workers. Title V includes a prohibition on retaliation for asserting rights under any of the ADA’s provisions. Congress has added to the ADA’s protections with subsequent laws, such as the Americans with Disabilities Amendments Act (ADAAA) and the Genetic Information Nondiscrimination Act (GINA), which both became law in 2008.
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The Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff et seq., protects employees from privacy violations and discrimination in employment based on information obtained through DNA tests and other procedures. It also prohibits employers from requiring employees to submit DNA samples, with narrowly defined exceptions. Some states have similar laws, such as New Jersey’s Genetic Privacy Act of 1996, N.J.S.A. § 10:5-43 et seq., which amended the New Jersey Law Against Discrimination to prohibit employment discrimination based on “genetic information,” N.J.S.A. § 10:5-12(a). Few court decisions have considered the scope of these laws’ protections, however. A recent court decision and jury verdict, however, in Lowe, et al v. Atlas Logistics Group Retail Svcs. (Atlanta), LLC, No. 1:13-v-02425, complaint (N.D. Ga., Jul. 22, 2013), suggests that these laws could provide an very effective defense against discrimination and employer intrusions into employee privacy.

Congress enacted GINA in 2008, so the statute has not amassed much of a track record in the court system. The Equal Employment Opportunity Commission (EEOC) has brought suit under GINA in several cases around the country for a wide range of practices:

– In EEOC v. Fabricut, Inc., the EEOC alleged that an employer violated GINA by allegedly refusing to hire a job applicant it thought had carpal tunnel syndrome, and by asking for her medical history. The employer settled the suit for $50,000.
– A class discrimination suit against a New York nursing home, EEOC v. Founders Pavilion, Inc., claimed that the employer unlawfully requested genetic information from job applicants. The defendant settled for $370,000. A lawsuit against another New York nursing home with similar allegations, EEOC v. BNV Home Care Agency, is still pending.
– A lawsuit against several seed and fertilizer companies for alleged medical and genetic information inquiries during the hiring process, EEOC v. All Star Seed, Inc., et al., resulted in a $187,500 settlement.
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Legal protections for lesbian, gay, bisexual, and transgender (LGBT) individuals remain uncertain in many parts of the country, despite recent court victories. Fewer than half of U.S. states prohibit employment discrimination based on sexual orientation (the “LGB” part of the acronym) or gender identity (the “T” part). The New Jersey Law Against Discrimination (NJLAD) expressly prohibits both types of discrimination, but Title VII of the Civil Rights Act of 1964 only protects people from discrimination based on sex, race, color, religion, and national origin. A recent decision by the Equal Employment Opportunity Commission (EEOC), however, held that Title VII’s prohibition on sex discrimination already covers sexual orientation discrimination. Baldwin v. Dept. of Transportation, EEOC Appeal No. 0120133080 (Jul. 15, 2015) (PDF file). A 2012 decision, Macy v. Dept. of Transportation, EEOC Appeal No. 0120120821 (Apr. 20, 2012), held that this part of Title VII covers gender identity. These decisions only apply to federal employees, but they are still an important step forward. Most employment discrimination claims still require a careful analysis of federal, state, and city laws.

The complainant in the recent EEOC decision claimed that the Federal Aviation Administration (FAA) discriminated against him on the basis of his status as a gay man when it denied him a particular promotion, citing negative remarks allegedly made by his supervisor. The FAA dismissed his complaint as untimely, and he appealed to the EEOC. After finding that the complaint was timely, the EEOC ruled that the important question in a sexual orientation discrimination claim is not “whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions,” but “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.” Baldwin at 5-6, quoting Macy at 6. See also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The EEOC’s decisions in both Baldwin and Macy, interestingly, relied rather heavily on a Supreme Court decision written by Justice Scalia, who is not known for his support of expanded legal protections for LGBT individuals. The Supreme Court ruled in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), that a male oil-rig worker could sue for sexual harassment by male co-workers. Writing for a unanimous court, Justice Scalia stated that “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils.” Baldwin at 13, quoting Oncale, 523 U.S. at 79.
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The U.S. Supreme Court ruled in favor of a woman who claimed that a clothing retailer violated Title VII of the Civil Rights Act of 1964 when it turned down her job application. She specifically alleged that the retailer discriminated against her because she wore a headscarf as part of her religious practice as a Muslim, which the retailer claimed violated a policy on employee attire. The retailer claimed that she never requested a religious accommodation–such as an exception to the policy prohibiting headwear–and argued that it was not liable for any violation of her rights because it had no “actual knowledge” that she needed an accommodation. The Supreme Court disagreed, holding that the complainant only needed to prove that her need for a religious accommodation motivated the decision not to hire her. Equal Emp’t Opportunity Comm’n (EEOC) v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015).

The complainant was a teenager when she applied for a job at an Abercrombie & Fitch store in 2008. She wore a headscarf to her interview with an assistant manager at the store. The assistant manager determined that the complainant was qualified for the position. She was reportedly concerned, however, that the complainant’s headscarf violated the store’s “Look Policy,” which regulated how employees dress at work in an effort to maintain a consistent style across the retailer’s nationwide locations. The assistant manager took her concerns to the store manager, who stated that the headscarf violated the Look Policy and instructed the assistant manager not to hire the complainant.

The EEOC filed suit against the retailer in 2009 on the complainant’s behalf, alleging that the decision not to hire her was motivated by her religion, as signified by her headscarf, in violation of Title VII. A district court granted summary judgment for the EEOC on the question of liability. 798 F.Supp.2d 1272 (N.D. Ok. 2011). It awarded the complainant $20,000 in damages after a trial. The Tenth Circuit Court of Appeals, however, reversed these rulings and entered summary judgment for the defendant. It held that the defendant lacked “actual knowledge” of the complainant’s need for a religious accommodation because she failed to request it, and the defendant therefore could not be liable for religious discrimination under Title VII. 731 F.3d 1106 (10th Cir. 2013).
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