Employment Discrimination

November 8, 2024

How AI Can Cause Inadvertent Disability Discrimination in New Jersey Workplaces

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.
Continue reading

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.
Continue reading

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.
Continue reading

August 30, 2024

Third Circuit Affirms Dismissal of Plaintiff’s Racial Discrimination Case

by Resnick Law Group, P.C.

In a recent ruling, the Third Circuit upheld a summary judgment in favor of Bryn Mawr Trust Company (BMT) in a lawsuit filed by former employee, Russo. Russo, who is Black, alleged that her supervisor, Therese Trainer, subjected her to racial discrimination, retaliation, and a hostile work environment. Ultimately, the court rejected Russo’s claims against her former employer; however, the case provides important insight to similarly situated employees who are looking to learn more about their options.

The Court Rejects Each of the Plaintiff’s Claims

The court reviewed Russo’s claims under the McDonnell Douglas burden-shifting framework. While Russo established a prima facie case of discrimination by highlighting several instances of inappropriate comments and perceived hostile actions by Trainer, the court found that BMT provided legitimate, non-discriminatory reasons for its actions. Specifically, the court noted that the security investigation into Russo’s handling of a vault key, which led to her suspension with pay, was justified given the seriousness of the breach. Additionally, the court determined that Russo’s claim of constructive discharge—stemming from BMT’s decision to give a hostile customer 30 days to close her account—did not hold up under legal scrutiny. The court concluded that BMT’s response was consistent with its standard procedures and did not create an environment so intolerable that a reasonable person would feel compelled to resign.

The court also dismissed Russo’s retaliation claims, emphasizing that the security investigation was initiated before Russo filed her EEOC and PHRC complaints, making it unlikely to be retaliatory. The court further found that BMT’s handling of the hostile customer incident was prompt and appropriate, undermining Russo’s claims of retaliation.

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.
Continue reading

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.
Continue reading

May 29, 2024

How a U.S. Supreme Court Ruling Could Affect Title VII Discrimination Claims

by Resnick Law Group, P.C.

The U.S. Supreme Court issued a ruling in April 2024 that addresses an important question about what plaintiffs must prove in employment discrimination claims. Federal and New Jersey employment laws do not expressly state that a plaintiff alleging discrimination must prove that they suffered significant harm. Many courts, however, have interpreted antidiscrimination laws as requiring this kind of proof. The Supreme Court’s ruling in Muldrow v. City of St. Louis overturned multiple lower court precedents applying this interpretation to Title VII of the Civil Rights Act of 1964. It held that a discriminatory job transfer is unlawful even without evidence of a “materially significant disadvantage.”

Section 703(a)(1) of Title VII deals with unlawful employment discrimination. It mentions acts like “fail[ing[ or refus[ing] to hire” a person and “limit[ing], segregat[ing], or classify[ing]” employees in discriminatory ways. It does not specifically state that a discriminatory employment action must cause harm to the person experiencing the discrimination. Before Muldrow, many courts had interpreted this provision as requiring proof of harm in at least some cases. This includes courts in New Jersey.

The Third Circuit Court of Appeals has held that Title VII discrimination claims involving “adverse employment actions” require proof of a “cognizable injury.” The injury must be serious enough to alter the “terms, conditions, or privileges of employment.” In the 1997 decision establishing this rule, the court held that “unnecessary derogatory comments” made toward the plaintiff did not rise to this level. Refusal to recommend the plaintiff for a promotion based on discriminatory grounds, however, would meet the standard. Muldrow may overturn the Third Circuit’s rule.
Continue reading

May 10, 2024

New Jersey Jury Awards $1 Million in National Origin Discrimination Lawsuit

by Resnick Law Group, P.C.

Discrimination based on a person’s national origin violates New Jersey employment laws. This includes discrimination in decisions related to hiring, promotions, job duties, benefits, firing, and other features of employment. It also includes harassment based on national origin, such as when unwelcome remarks, jokes, slurs, or other conduct creates a hostile work environment. Employers may not retaliate against an employee who reports or opposes national origin discrimination in the workplace. A lawsuit went to trial earlier this year in which a plaintiff alleged national origin discrimination based on her accent. In early March, a jury in an Essex County Superior Court awarded her $1 million in damages.

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination based on numerous factors, including national origin, ancestry, race, and color. This includes both actual and perceived national origin, as well as stereotypes about one’s national origin. The Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination law, states that the following may constitute unlawful national origin discrimination:
– Discrimination based on a person’s accent when their manner of speech does not interfere with their job;
– Language fluency requirements that are not reasonably related to the job; and
– English-only rules that are not necessary for workplace safety or efficiency.

The plaintiff in the Essex County lawsuit was born and raised in Romania. According to her complaint, she and her husband immigrated to the United States in 2000 and became naturalized citizens in 2005. She states that she began studying English in the second grade. She obtained a master’s degree from a New Jersey school, with all instruction taking place in English. She states that she began working for the defendant in 2012 and that her employment went well for several years.
Continue reading

May 3, 2024

New Jersey Bills Would Regulate the Use of AI in Employment Decisions

by Resnick Law Group, P.C.

Employers have begun relying on various artificial intelligence (AI) tools to streamline the hiring process and other aspects of the employment relationship. While the marketing for these tools sometimes claims that they can perform certain tasks better than humans, experience demonstrates that they are not free of many human biases. Humans programmed the AIs, after all, and may have included their own biases in the code. Two pending bills would amend New Jersey employment law to regulate the use of these tools in the hiring process. One would require “bias audits” of AI-based analytical tools. The other bill deals specifically with AI tools that analyze video interviews of job applicants.

The Use of AI in Hiring

The term “artificial intelligence” can refer to several types of software applications. Generative AI, for example, can create written or visual works based on user prompts. Employers use analytical AI tools to go through large amounts of data and make recommendations or decisions. For example, an AI system could screen job applicants based on whatever factors employers choose. This is the source of much of the concern about AI in employment decisions. Employers are ultimately liable for bias in an AI tool’s algorithm.

Automated Employment Decision Tools

A3854, introduced in the New Jersey Assembly on February 22, 2024, would regulate companies that produce and sell “automated employment decision tools” (AEDTs), as well as the employers that use them. The bill defines an AEDT as a system that uses statistical theory or a learning algorithm to filter job applicants or employees in a way that “establishes a preferred candidate or candidates.” Any AI system that screens job applicants would fit this definition.
Continue reading

April 16, 2024

Proposed Regulations Would Target Salary History Discrimination by Federal Contractors

by Resnick Law Group, P.C.

New Jersey employment law prohibits employers from screening job applicants based on their salary history. Employers also may not require applicants to provide salary history information. The law helps job seekers overcome historical disparities in pay. It requires employers to base new hires’ pay on the market rate for their labor rather than their previous salary or wages. The law includes an exception for situations where a federal law or regulation requires job applicants to disclose salary history, or employers to verify that information. This exception might not be an issue much longer for many situations governed by federal law. In January 2024, the Federal Acquisition Regulatory (FAR) Council published proposed regulations in the Federal Register that would prohibit federal contractors from asking job applicants for salary information or using salary history to screen applicants.

A 2019 New Jersey law addresses how employers may use salary history during the hiring process. Employers may not require applicants to provide information about past wages or salary. They may not use that information in hiring decisions. If, however, an applicant provides such information voluntarily, “without employer prompting or coercion,” the employer may consider that information when determining that individual’s “salary, benefits, and other compensation.”

Employers who violate the 2019 law may face civil penalties, payable to the state, that start at $1,000 for a first violation. A second violation carries a $5,000 fine, and a third may result in a $10,000 fine. If a job applicant is part of a protected group under the New Jersey Law Against Discrimination, they may also have the right to sue for violations of the salary history law.
Continue reading