Articles Posted in Discrimination

Discrimination on the basis of gender and various other factors violates federal and state employment laws in New Jersey. Employers may not take adverse actions against employees, ranging from shunning or isolating them to terminating them, based primarily on their gender or sex. They also may not retaliate against an employee for reporting concerns about gender discrimination in the workplace. A lawsuit filed in late 2021 alleges that a hospital discriminated against a doctor because of her gender and retaliated against her for opposing such practices. She alleges that the hospital eventually fired her for discriminatory and retaliatory reasons. If you feel you are the victim of retaliation or wrongful termination, contact a New Jersey employment lawyer to discuss your situation.

The New Jersey Law Against Discrimination (NJLAD) protects employees and job seekers from discrimination based on numerous factors, including sex. It prohibits retaliation for opposing or complaining about allegedly unlawful practices. It also allows workers to bring civil claims for aiding and abetting violations. At the federal level, Title VII of the Civil Rights Act of 1964 protects a smaller number of categories against discrimination, but the list includes sex. It also includes provisions barring retaliation.

The plaintiff in the lawsuit described above worked for a hospital affiliated with a major research university. According to her complaint, she entered into a two-year employment arrangement with the hospital as an Instructor in Surgery in December 2017. She describes her performance at the hospital as “stellar,” stating that she received “outstanding patient satisfaction scores” and various honors, including a Junior Faculty Award in 2019. She reportedly received a grant from the National Institutes of Health (NIH) in early 2019 that would have covered half her salary and funded much of her research. She allegedly could not participate in the grant program, however, because of the “relentless sexism” of her supervisor.
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Federal and state employment laws in New Jersey require equal pay for workers in highly similar jobs in various circumstances. The federal Equal Pay Act (EPA) specifically addresses equal pay in terms of sex discrimination. New Jersey’s Diane B. Allen Equal Pay Act (NJEPA), on the other hand, takes on pay discrimination on the basis of any protected category under the New Jersey Law Against Discrimination (NJLAD), which is a rather long list. Equal pay claims based on sex discrimination are among the most common type of claim. A federal lawsuit filed in early 2022 in New Jersey alleges pay discrimination based on sex under both federal and state law. If you feel you may be the victim of pay discrimination, it is important that you reach out to a New Jersey employment lawyer to discuss your situation.

The EPA, codified at 29 U.S.C. § 206(d), states that employers may not discriminate based on sex when employees of one sex receive higher pay for “equal work” that “requires equal skill, effort, and responsibility…under similar working conditions.” Male and female employees working in the same position, with similar levels of education, training, or skill, should receive the same amount of pay in most circumstances. The EPA allows exceptions for systems based on merit, seniority, “quantity or quality of production,” or other factors that are not based on employees’ sex. Employers may not reduce any employee’s pay in order to comply with the law.

The NJEPA, found at N.J. Rev. Stat. § 10:5-12(t), is similar to the EPA in the protections it offers. It is not limited to pay discrimination on the basis of sex. Other categories protected under the NJLAD include race, religion, sexual orientation, gender identity or expression, pregnancy, and disability. The state law also allows exceptions for merit- or seniority-based systems, but its standard for other factors is arguably stricter than that of the EPA. An employer must show that the pay difference is solely based on factors other than sex, that it does not perpetuate pay discrimination based on any protected category, that the employer applies these factors “reasonably,” and that the factors are both “job-based” and “based on a legitimate business necessity.”
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Proving that an employer in New Jersey has engaged in unlawful employment discrimination is often difficult. The facts of a case might not include overt policies or statements that show an employer’s discriminatory intent. The U.S. Supreme Court identified a framework to use in cases where a plaintiff does not have direct evidence of an employer’s intent to discriminate. If a plaintiff can establish enough facts to support a legal claim for discrimination, the burden of proof will temporarily shift to the defendant to show a nondiscriminatory reason for their actions. This is known as the “McDonnell Douglas framework,” after the Supreme Court’s 1973 ruling in McDonnell Douglas Corp. v. Green.

Multiple federal statutes protect workers against various forms of discrimination, including Title VII of the Civil Rights Act of 1964 (race, sex, color, national origin, and religion), the Age Discrimination in Employment Act (age, for workers who are at least forty years old), and the Americans with Disabilities Act of 1990 (actual or perceived disabilities). Courts most commonly use the McDonnell Douglas framework in Title VII claims, but it may appear in claims under other federal statutes.

Many state courts have also adopted McDonnell Douglas or something similar. For example, the New Jersey Appellate Division cited the decision in a recent case involving a sex discrimination claim under the New Jersey Law Against Discrimination.
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Disability discrimination violates New Jersey employment laws at the state and federal levels. Employers may not take adverse actions against employees or job seekers because of an actual or perceived disability. Employers who violate these rights may be liable for damages. The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with investigating alleged employment discrimination. It occasionally pursues civil lawsuits against employers on employees’ behalf. It recently announced that it reached a settlement with a New Jersey hospital in a lawsuit alleging disability discrimination.

The Americans with Disabilities Act (ADA) of 1990 uses an expansive definition of disability that includes many conditions, injuries, and illnesses. An impairment may be considered a “disability” if it “substantially limits one or more major life activities” for a person. “Major life activities” may include most daily tasks that people tend to take for granted, as well as most “​​major bodily functions.” Illnesses or conditions that significantly impair the circulatory system, for example, could be considered a disability under the ADA.

Disability discrimination, as defined by the ADA, may include any act, practice, or policy that “adversely affects the opportunities or status” of an employee or job applicant because of their disability. It also includes failing to make reasonable accommodations for an employee or qualified job applicant, when the accommodation would not pose an undue burden on the employer and would enable the individual to perform their job duties more effectively.
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Federal and state employment laws in New Jersey protect workers from discrimination on the basis of disability. The Equal Employment Opportunity Commission (EEOC) construes the term “disability” very broadly to include an array of physical and mental conditions. We are still learning about the long-term effects of COVID-19 on some people. The symptoms of “long COVID” can be debilitating. In late 2021, the EEOC updated its guidance regarding COVID-19 to address when the illness may constitute a disability under the Americans with Disabilities Act (ADA). If you are experiencing symptoms associated with a possible disability and are concerned about how you are treated at work, please reach out to a New Jersey employment lawyer to discuss the situation.

The text of the ADA itself contains a rather general definition of “disability.” It covers impairments that “substantially limit[] one or more major life activities.” The statute defines “major life activities” as most daily tasks, such as “sleeping, walking, standing, lifting, bending, speaking, [and] breathing,” to name but a few, along with most “major bodily functions.”

The ADA’s protections apply in three situations:
– People who have a disability, as defined by the statute;
– People who have a “record” of a disability; and
– People who are “regarded as having” a disability.
A worker may experience unlawful discrimination based on a perception that they have a disability, regardless of whether they actually have a disability that impairs a major life activity.
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Workers have long had to juggle their obligations at work and caregiving responsibilities at home. This includes not only parents, but also people caring for elderly relatives, family members with disabilities, and others. The COVID-19 pandemic has made this issue much more pressing. Some jurisdictions have enacted laws that expressly protect people with caregiving responsibilities from employment discrimination. The New Jersey Law Against Discrimination (NJLAD), for example, protects parents and others with caregiving responsibilities for a child. The Equal Employment Opportunity Commission (EEOC) recently issued guidance about caregiver discrimination under federal law. While no federal employment law specifically bars discrimination on the basis of caregiver responsibilities, the EEOC identifies ways that such discrimination might still constitute unlawful discrimination. If you care for someone outside of your duties at work and have concerns that those responsibilities are impacting your status at the workplace, contact a New Jersey employment lawyer to discuss your situation.

The NJLAD prohibits discrimination against employees and job applicants on the basis of “familial status.” It defines this as having a “parent and child relationship” under state law, which includes biological parents, adoptive parents, foster parents, and other types of guardians. It also includes people who are pregnant and people who are working to gain legal custody of a minor child. Employers may not refuse to hire someone because of their familial status, nor may they fire them or subject them to other adverse employment actions on that basis.

New York City has one of the most expansive employment discrimination laws in the country. It goes farther than New Jersey law with regard to caregiver discrimination. A “caregiver,” under New York City law, includes a person with an obligation to care for a minor child. It also includes anyone who cares for a close relative or a person living in their household who depends on them “for medical care or to meet the needs of daily living.” The person must be providing “direct and ongoing care.”
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Criminal history can be one of the biggest stumbling blocks in the search for a job. Steady employment is a critically important factor in returning to normal life after a criminal conviction. Many employers, however, do not want to hire anyone with a criminal record, even if the specific details of a job applicant’s history would not affect the job they want to do. New Jersey’s Opportunity to Compete Act (OTCA) states that employers may not ask about criminal history until later in the hiring process. It does not offer as much protection for job applicants as similar laws in other states and cities. At the federal level, discrimination based on criminal history could be unlawful in certain circumstances. A New Jersey employment attorney can help you explore your options if you have experienced this kind of discrimination.

The OTCA only offers limited protection for job applicants with criminal records. It does not restrict how employers may act upon criminal history information once an applicant has made it past the initial stages of the hiring process. If an employer violates the statute, it does not expressly state that a job applicant may file a lawsuit for damage. Instead, it states that the only remedy for a violation is a civil penalty paid to the state.

The Third Circuit Court of Appeals considered a criminal history discrimination claim brought under the OTCA in a 2020 decision. The decision is one of the few to address criminal history discrimination in New Jersey, but it sheds little light on whether the OTCA allows private causes of action.
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Criminal background checks are increasingly common in the hiring process. They often present a major stumbling block for people who are trying to put their lives together after a criminal conviction. Many employers simply refuse to hire anyone with a felony record, regardless of whether the offense has any relation to the job a person is seeking. Employment laws in New Jersey and other states are trying to rectify the situation. The New Jersey Legislature passed the Opportunity to Compete Act (OTCA) in 2014. Federal law does not include specific protections against discrimination based on criminal history, but several provisions of federal law can indirectly affect how employers conduct background checks on job applicants.

When it passed the OTCA, the state legislature recognized the importance of “[r]emoving obstacles to employment for people with criminal records.” It found that as many as 65 million people nationwide faced difficulty finding jobs because of their criminal records, and that up to ninety percent of employers use criminal background checks to some extent during the hiring process. Since having a job “significantly reduces the risk of recidivism” for people with criminal histories, the state legislature concluded that it had to act. The OTCA does not go as far as many similar laws, but it is a step in the right direction.

The OTCA is part of a group of laws passed by state and local governments around the country known as “Ban the Box” laws. The OTCA prohibits employers from asking New Jersey job applicants about criminal history at the beginning of the hiring process. The “box” refers to the “yes/no” checkbox found on many job application forms asking whether someone has ever been convicted of a criminal offense. Checking the box, which indicates that an applicant has one or more convictions, has often resulted in the application going directly into employers’ “rejected” piles.
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