Employment Discrimination

November 18, 2016

New EEOC Rules on Employer Wellness Programs Lead to Lawsuit

The Equal Employment Opportunity Commission (EEOC) recently issued two new Final Rules regarding employer wellness programs. 81 Fed. Reg. 31125, 81 Fed. Reg. 31143 (May 17, 2016). Federal law defines a “wellness program” as any program offered to employees that is “designed to promote health or prevent disease.” 42 U.S.C. § 300gg(j)(1)(A). The new rules address compliance under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; and Title II of the Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff et seq. In addition to prohibiting employment discrimination, both statutes include provisions for the protection of employees’ medical information. Concerns over the new rules led AARP, an advocacy group for older Americans, to file a lawsuit seeking an injunction against the EEOC. AARP v. EEOC, No. 1:16-cv-02113, complaint (D.D.C., Oct. 24, 2016).

The EEOC notes that some wellness programs offer incentives to employees to encourage participation, from discounts on health insurance premiums to cash or other prizes. Other programs offer similar incentives for specific outcomes like weight loss. The ADA prohibits employment discrimination based on disability, including in the availability of employment-related fringe benefits. The statute does not allow employers to require medical examinations or make inquiries about disabilities if they are not directly related to the employee’s job duties, but it allows an exception for “voluntary” medical examinations in connection with a wellness program. 42 U.S.C. § 12112(d)(4).

GINA prohibits discrimination based on genetic information and places strict limits on employers’ ability to collect medical history and genetic information from employees. Employers may collect employees’ genetic information in connection with a voluntary wellness program, with limits on who may access that information, how employers may use that information, and which incentives or inducements employers may offer to encourage participation in the program. 29 C.F.R. § 1635.8(b)(2).

October 6, 2016

New York City Lawsuit Alleges Discrimination Based on Mental Health Conditions

by Resnick Law Group, P.C.

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., along with various state and city laws, protects employees with certain disabilities from discrimination and requires employers to make “reasonable accommodations” for qualifying employees who need them to perform the essential elements of their jobs. Conditions that can qualify for ADA protection range from short-term physical injuries to chronic conditions, including mental health conditions. A lawsuit recently filed in New York City alleges that the plaintiff’s employer fired her in violation of state and city anti-discrimination laws because she was diagnosed with attention deficit hyperactivity disorder (ADHD). Thiery v. Slover, et al., No. 156310/2016, complaint (N.Y. Sup. Ct., N.Y. Co., Jul. 28, 2016).

The National Institute of Mental Health (NIMH) defines ADHD as a mental health disorder “marked by an ongoing pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development.” ADHD is commonly associated with children but is also present in adults. The three main features of ADHD, according to NIMH, are inattention, hyperactivity, and impulsivity. These traits are present to some extent in almost everyone, but in adults diagnosed with ADHD, they are present to such a degree that they can interfere with daily functioning.

A “disability” under the ADA includes a condition “that substantially limits one or more major life activities,” a “record” of this type of condition, and the perception of being impaired. 42 U.S.C. § 12102(1). Numerous courts have recognized that ADHD can constitute a “disability” within the meaning of the ADA, although the difficulty is in proving that the condition rises to that level of impairment. In one case, for example, a court found that the plaintiff had established a record “of a substantially limiting impairment,” but she had not adequately shown that her recent impairment was directly attributable to her ADHD diagnosis, nor that her employer “regarded her as having such an impairment.” Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 502 (7th Cir. 1998).

September 1, 2016

EEOC Touts Success of Program to Combat Systemic Discrimination in Employment

by Resnick Law Group, P.C.

Employment discrimination is not limited to individual acts of overtly disparate treatment based on factors like race, sex, national origin, or disability. It can also take much more subtle forms, which might only be visible if one takes a much broader look at an employer’s practices. The Equal Employment Opportunity Commission (EEOC) calls this “systemic discrimination.” While it can affect large numbers of workers in one or more protected classes, it can also be difficult to prove in a legal proceeding. The EEOC recently published a review touting “significant success” in a nationwide program that it launched in 2006 to fight systemic discrimination. New Jersey courts have addressed systemic discrimination under federal and state employment laws, providing workers with a variety of means for asserting their rights.

The EEOC defines systemic discrimination as any “pattern or practice, policy, or class case” having “a broad impact on an industry, profession, company, or geographic area.” Examples of unlawful systemic discrimination might include questions on job applications that unlawfully exclude people with disabilities, as well as restrictions on access to “management trainee programs” or “high level jobs” that disparately affect prospective trainees or employees based on factors like race or gender.

According to the EEOC’s 10-year review, published in July 2016, the agency has prevailed in 94 percent of the lawsuits brought through its nationwide systemic discrimination program. The amount of monetary damages recovered during the period covering fiscal years 2011 through 2015 was reportedly three times as much as the amount recovered during the previous five fiscal years. Between fiscal year 2007 and fiscal year 2015, the EEOC also increased the rate of “successful voluntary conciliations of systemic investigations” from 21 percent to 64 percent.

August 25, 2016

Employment Contract May Not Restrict Employee’s Rights Under New Jersey Law Against Discrimination, According to State Supreme Court

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (LAD) protects workers in this state from a wide range of unlawful employment practices. In order to assert their rights and claim damages, individuals must follow procedures outlined in the LAD, as well as case law interpreting the statute. This includes a two-year statute of limitations for filing suit. The New Jersey Supreme Court recently ruled that an employment contract may not limit the protection offered by the LAD by reducing this time period from two years to six months. Rodriguez v. Raymours Furniture Co., No. A-27 Sept. Term 2014, 074603, slip op. (N.J., Jun. 15, 2016). The court held that any such restriction “defeats the public policy goal” of the LAD. Id. at 4.

The LAD prohibits employers from discriminating against employees on the basis of various protected categories, including race, sex, religion, national origin, sexual orientation, gender identity or expression, and disability. N.J. Rev. Stat. § 10:5-12. It also prohibits retaliation against an employee for asserting their rights, such as by making an internal complaint to a human resources official or an external complaint to state or federal officials.

An individual may file a complaint with the New Jersey Division on Civil Rights, or they may file suit in Superior Court against an employer for alleged violations of the LAD. The statute does not specify a time frame during which a complainant must file suit, but the state Supreme Court has determined that the applicable statute of limitations is two years. Montells v. Haynes, 627 A.2d 654, 133 N.J. 282 (1993).

August 5, 2016

New Employment-Related Bills Pending in the New Jersey Legislature

by Resnick Law Group, P.C.

Several bills currently pending in the New Jersey Legislature could make substantial changes to state laws dealing with employees’ rights in the workplace. Two bills address various forms of employment discrimination, and another two would raise the state’s minimum wage. Each bill was introduced in early 2016 and referred to a committee. Three bills are still awaiting committee hearings, while one of the minimum wage bills passed both chambers and is now waiting for the governor’s signature or veto. Whether any of these bills pass or not, they bring needed attention to issues that employees face throughout New Jersey.

Minimum Wage

The minimum wage in New Jersey is currently $8.38 per hour. N.J. Rev. Stat. § 34:11-56a4, N.J.A.C. § 12:56-3.1. A bill that would gradually raise the state’s minimum wage to $15 per hour has passed both houses of the Legislature. A15 would raise the minimum wage to $10.10 per hour on January 1, 2017. On the first day of each subsequent year, the minimum wage would increase by the greater of either $1.25 per hour or $1.00 plus that year’s increase in the consumer price index.

The goal of the bill is for the minimum wage to reach or exceed $15 per hour by 2021. The bill was introduced in the New Jersey Assembly on February 8, 2016. The Assembly passed it on May 26, followed by the Senate on June 23. The governor has reportedly threatened to veto the bill but has not yet done so. He also has not signed it into law.

June 3, 2016

Employees May Be Able to Assert Title VII Claims Regardless of Immigration Status, According to Appellate Court Ruling

by Resnick Law Group, P.C.

People who are not United States citizens or lawful permanent residents, and who lack official authorization to be in the U.S., are often referred to as undocumented immigrants—as well as a variety of less polite terms. Although undocumented immigrants are not officially allowed to live or work in the U.S., they may still be able to avail themselves of the protections of certain federal, state, and local laws. New Jersey courts have held that undocumented immigrants have standing to sue an employer under some laws, but not others. A recent federal appellate court ruling could affect these precedents. A court ruled that the Equal Employment Opportunity Commission (EEOC) has the authority to subpoena employment records in connection with an undocumented immigrant’s discrimination complaint under Title VII of the Civil Rights Act of 1964. EEOC v. Maritime Autowash, Inc., No. 15-1947, slip op. (4th Cir., Apr. 25, 2016).

The Constitution gives the federal government exclusive authority over immigration law and policy, including official determinations of an immigrant’s status and work authorization for immigrants. Employers are prohibited from recruiting, hiring, or employing anyone who lacks work authorization. 8 U.S.C. § 1324a. They must verify every employee’s work eligibility by collecting documentary proof that they are a U.S. citizen, a lawful permanent resident, or an authorized visa holder.

Federal immigration law includes employment discrimination provisions, but they specifically exclude people who lack work authorization. 8 U.S.C. § 1324b(a)(3). In determining whether a particular employment statute applies to undocumented immigrants, courts often look at whether the statute expressly limits its coverage to individuals with work authorization, or otherwise excludes undocumented immigrants.

May 19, 2016

Certain Terms May Act as Code for Age Discrimination, Other Unlawful Employment Practices in New Jersey

by Resnick Law Group, P.C.

Age discrimination in the technology industry has received considerable media coverage in recent years, as several high-profile technology executives have made quite blatant statements of bias against older workers. Employment discrimination takes many forms, however, and frequently involves subtle actions, or patterns of action, rather than anything overtly and unmistakably discriminatory. The use of certain terms or phrases in job postings may serve as evidence of bias against certain protected groups. Claims against tech companies have alleged age discrimination based on employment advertisements stating preferences like “new grads.” Over the past year, the term “digital native” has emerged as the latest in a long line of possible indicators of age bias by technology companies and other employers around the country.

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., prohibits discrimination on the basis of age against workers who are at least 40 years old. Exceptions include a “bona fide occupational qualification” involving age, or “reasonable factors other than age.” 29 U.S.C. § 623(f)(1), 29 C.F.R. §§ 1625.6, 1625.7. The statute does not prevent an employer from favoring someone age 40 or older over someone younger than 40, based solely on age. It is only intended to protect older workers from discriminatory practices favoring younger workers. The number of age discrimination complaints received annually by the Equal Opportunity Commission (EEOC) has increased from 15,785 in 1997 to 20,144 in 2015

Statements indicating bias against older workers seem to be common in the tech industry, if the news media are any indication. In 2007, Facebook CEO Mark Zuckerberg, who was 22 years old at the time, stood on stage at a conference and declared that “young people are just smarter.” His company settled an age discrimination claim with state regulators six years later, after the company advertised a job opening with the caveat that it preferred applicants from the “Class of 2007 or 2008.” It is not entirely clear why so many in the tech industry seem to favor younger workers. Youth is by no means an indicator of superior aptitude with computer technology, but that is apparently the perception of many. This is where the term “digital native” comes into play.

May 13, 2016

EEOC Settles Sex Discrimination Lawsuit Against New York Metro Area Retailer for $2.1 Million

by Resnick Law Group, P.C.

The Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating and prosecuting employment discrimination claims under Title VII of the Civil Rights Act of 1964, recently settled a lawsuit against a company that operates a chain of retail stores in the New York metropolitan area. The lawsuit, filed as a class action, alleged a pattern or practice of sex discrimination in which the company refused to hire women for various positions. EEOC v. Mavis Discount Tire, Inc., et al., No. 1:12-cv-00741, complaint (S.D.N.Y., Jan. 31, 2012). The parties reached a settlement agreement in early 2016, in which the defendant agreed to pay $2.1 million and take various remedial actions.

Laws at the federal and state levels in New Jersey, New York, and elsewhere prohibit employment discrimination on the basis of sex or gender. This includes overt acts of discrimination against an individual employee or job applicant, and it may also include less obvious forms of discrimination. Systemic discrimination, commonly known as “pattern or practice” discrimination, occurs when an employer enacts policies or engages in practices that have a disparate impact on certain people based on a protected category, such as sex, race, or religion.

An employer may undertake a pattern or practice with the intent of discriminating against a protected group, but intent to discriminate is not a required element for a claim under Title VII. Even if a pattern or practice is “neutral on its face,” it is unlawful if it “operate[s] to ‘freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971). A plaintiff in a Title VII claim must establish that a pattern or practice has a disparate impact, and then the burden shifts to the employer to demonstrate its “business necessity,” which must be specifically “related to job performance.” Id. at 431. Congress codified the prohibition on systemic discrimination with the Civil Rights Act of 1991. See 42 U.S.C. § 2000e-2(k).

April 22, 2016

Five Players on U.S. Women’s Soccer Team File Wage Discrimination Complaint

by Resnick Law Group, P.C.

Five members of the U.S. women’s national soccer team (USWNT) have filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging unlawful wage discrimination by the U.S. Soccer Federation (USSF). They allege that they are paid substantially less than members of the U.S. men’s national soccer team (USMNT), despite generating significantly more revenue in recent years than the men’s team. They are asserting their claim on behalf of all members of the USWNT. The EEOC will investigate the claim, and it may decide to pursue the claim on the players’ behalf. Otherwise, it will issue a “right to sue” letter, allowing the players to file a private cause of action.

Under the Equal Pay Act (EPA), employers are generally prohibited from paying employees of one gender less than employees of another gender for the same work. The statute allows exceptions to this rule if the difference in wages is based on a system of seniority, merit, or “quantity or quality of production,” or on the vaguely worded “any other factor other than sex.” 29 U.S.C. § 206(d)(1). The USWNT players’ complaint essentially argues that they have produced a superior “quality of production” yet are paid significantly less than their male colleagues.

The USWNT, which was formed in 1985, is one of the world’s most successful soccer teams. It has won three World Cup titles, most recently in Canada in 2015, and four Olympic gold medals, most recently in London in 2012. The final game of the 2015 World Cup, in which the USWNT beat the Japanese team 5-2, drew more than 53,000 spectators and around 23 million television viewers.

March 24, 2016

New Employment Laws in New York City Restrict Use of Employee Credit, Criminal Histories in Hiring Decisions

by Resnick Law Group, P.C.

Two new employment laws took effect in New York City in late 2015 that limit the uses employers may make of job applicants’ credit and criminal histories. Individuals who, for whatever reason, have credit problems, or who have a record of one or more arrests, criminal charges, or convictions, may have difficulty finding a job because of this information, whether it is directly relevant to the job or not. The “Stop Credit Discrimination in Employment Act” (SCDEA) prohibits employers from requesting or using the consumer credit history of a job applicant or employee, except in specific, narrow circumstances. The “Fair Chance Act” (FCA) restricts when employers may ask about criminal history, and how they may use that information. New Jersey state law addresses criminal history in employment on a more limited basis, but it does not protect credit information.

The SCDEA, which took effect in September 2015, amends the New York City Human Rights Law (NYCHRL) to add a provision regarding employers’ use of consumer credit history. It defines “consumer credit history” as a person’s “credit worthiness, credit standing, credit capacity, or payment history,” based on certain types of information. N.Y.C. Admin. Code § 8-102(29). Credit information typically comes from credit reports and credit scores issued by the major consumer credit bureaus, but the NYCHRL states that it can also come directly from the job applicant or employee if it relates to “details about credit accounts,…bankruptcies, judgments or liens.” Id.

An employer, under the SCDEA, may not request or use consumer credit information in hiring decisions, nor may it discriminate based on an employee’s credit history. N.Y.C. Admin. Code § 8-107(24). The law allows exceptions if state or federal law requires a review of credit history. Other exceptions include jobs as a police officer or certain other law enforcement positions, any job that requires the employer to obtain a bond, jobs requiring security clearance under state or federal law, and jobs that involve high levels of financial responsibility or digital security. A bill with similar provisions, S. 1130, passed the New Jersey Senate in June 2015, but its companion bill in the Assembly died in committee.