Employment Discrimination

March 24, 2025

Third Circuit Rules on Employment Discrimination Claim Based on New Jersey’s Recreational Cannabis Law

New Jersey has allowed the use of cannabis for at least some reasons for the last fifteen years. Still, the relationship between New Jersey employment law and cannabis law remains uncertain. Employees in New Jersey who use cannabis for medical purposes with a doctor’s prescription may have rights under state laws prohibiting disability discrimination. A much newer law allows recreational use of small amounts of cannabis. This law specifically states that employers may not discriminate against employees based on legal cannabis use outside of work, provided they are not under the influence of cannabis while at work. A job applicant filed suit against a major retailer after it rescinded a job offer because a drug test was positive for cannabis. The Third Circuit Court of Appeals ruled in late 2024 that the recreational cannabis law does not give job applicants or employees the right to file a private cause of action for alleged discrimination. This leaves employees with legal rights against discrimination but no clear means of enforcing those rights.

The New Jersey medical cannabis law took effect in 2009. It originally stated that employers did not have to accommodate medical cannabis use. Subsequent amendments to that section of the law have removed that language. Currently, the medical cannabis law does not contain any explicit employment protections. A 2020 ruling by the New Jersey Supreme Court, however, held that the New Jersey Law Against Discrimination’s prohibition on disability discrimination applies to medical cannabis use outside of work. The case involved an employee who lost his job after his employer discovered he used cannabis with a prescription to treat the symptoms of cancer.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in 2021. It states that an employer may not refuse to hire or fire someone, nor may it discriminate in other ways because a person does or does not use cannabis for lawful recreational purposes. It also states that employers may not take adverse actions solely based on “the presence of cannabinoid metabolites” in a drug test resulting from lawful cannabis use. Employers may, however, require drug testing to ensure employees are not working under the influence. The statute does not state that employees may file suit for alleged violations, although some courts have allowed discrimination claims to proceed.
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March 10, 2025

Study Shows Race and Sex Bias in AI Hiring Tools

by Resnick Law Group, P.C.

Artificial intelligence (AI) applications are becoming quite common for a wide range of uses in employment. Many businesses use AI tools in hiring as a way of increasing efficiency, They can train AI tools, for example, to screen out applicants who meet certain criteria, or to look for certain favored criteria. The trick, as it turns out, is to make certain that the use of AI in hiring does not lead to violations of New Jersey employment law. On multiple occasions over the past few years, AI hiring tools have produced outcomes that demonstrate bias based on race, sex, or other factors. Even if a machine or algorithm makes a hiring decision, the employers may ultimately be liable for unlawful discrimination. The legal system is still catching up to these aspects of AI. A recent study shows how biases in the information that an AI system receives can lead to biased outcomes.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination based on numerous factors, including race, sex, religion, disability, sexual orientation, gender identity, pregnancy, and national origin. Overt discrimination, such as refusing to hire someone specifically because they belong to a group listed in the NJLAD, is not the only kind of unlawful discrimination. Disparate impact discrimination occurs when a policy or practice has an outsized impact on members of a protected group, regardless of whether the employer intended to discriminate.

AI hiring tools may fall somewhere between these two types of discrimination. They can have a disparate impact on a protected group with no biased intent on the employer’s part. Studies suggest, though, that any bias AI shows is the result of bias in the information used to train the AI. Employers’ legal duty to guard against these types of bias remains an op[en question.
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February 11, 2025

Gender Identity Discrimination and Workplace Restroom Access in New Jersey

by Resnick Law Group, P.C.

Discrimination based on gender identity or gender expression has received a large amount of attention, partly due to advances made by advocates for transgender and gender non-conforming individuals in the workplace and elsewhere. It is also due to pushback against those advances. New Jersey employment law specifically bars discrimination based on gender identity and gender expression, while federal law treats it as a form of sex discrimination. The use of restrooms in the workplace has been a topic of particular controversy in recent weeks due to a dispute involving the first openly transgender woman elected to Congress. New Jersey law generally states that employers must allow bathroom use based on individual gender identity.

The Occupational Safety and Health Administration (OSHA) requires “lavatories…in all places of employment,” with only a few exceptions. Employers may have restrooms separated by sex or unisex restrooms. OSHA regulations are primarily concerned with sanitation and employee health, although the agency offers guidance on gender identity issues.

The New Jersey Law Against Discrimination (NJLAD) states that employers may not discriminate against employees or job applicants “because of [their]…gender identity or expression.” The New Jersey Attorney General’s Division on Civil Rights interprets this provision to include “us[ing] a bathroom or changing room consistent with [an individual’s] gender identity or expression.” The state government’s policy on individuals who are transitioning their gender identity or expression includes a provision on restroom access, which requires state employers to provide “the same level of restroom access available to non-transgender individuals.”
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January 22, 2025

Equal Pay Laws in New Jersey

by Resnick Law Group, P.C.

Disparities in wages and salaries remain a pernicious form of employment discrimination. According to the Pew Research Center, the nationwide gender pay gap only improved by 2% from 2002 to 2022. Women, on average, earned $0.80 for every $1 men earned in 2002, and $0.82 per $1 two decades later. These disparities can be much more pronounced when other factors, such as race, are taken into account. Both federal and New Jersey employment laws are working to address the issue, but it remains an issue. Lilly Ledbetter became an unintentional pioneer in this fight when Congress passed a law named after her that helps employees prove pay discrimination in court. Mrs. Ledbetter passed away at the age of 86 on October 12, 2024. In honor of her contributions to the battle for pay equity, we offer this review of her impact on federal pay discrimination law.

Several federal statutes address pay discrimination. The Equal Pay Act (EPA) of 1963 amended the minimum wage section of the Fair Labor Standards Act (FLSA). It applies specifically to gender-based disparities in pay for equal work, treating them as minimum wage and overtime violations.

Title VII of the Civil Rights Act of 1964 covers discrimination “with respect to…compensation” based on race, sex, religion, color, and national origin. Section 706(e) of the statute states that an employee must file a charge within 180 days of an alleged discriminatory practice. This makes sense when the employee is aware of the discriminatory practice at or near the time it occurs, such as in many cases involving sexual harassment or wrongful termination. Pay discrimination can be much harder to identify. This is where Lilly Ledbetter enters the story.
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November 29, 2024

New State Law Requires Pay Transparency by New Jersey Employers

by Resnick Law Group, P.C.

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 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.
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