Employment Discrimination

March 14, 2016

New Jersey Department of Labor Issues Regulations Implementing “Ban the Box” Law

A criminal record of any kind can be a serious impediment to finding a job. Many employers have policies excluding anyone with a felony conviction record, or even a misdemeanor record, from employment, regardless of whether it has any bearing on the job in question. “Ban the Box” (BTB) laws are intended to help people who might be qualified for a job but are unable to find work because of a criminal record. New Jersey passed the Opportunity to Compete Act (OCA), P.L. 2014 ch. 32, in June 2014. It took effect on March 1, 2015. The New Jersey Department of Labor and Workforce Development (LWD) issued new regulations implementing the law in December. 47 N.J.R. 3034(a) (Dec. 7, 2015).Numerous cities and states around the country have enacted BTB laws. The “box” in question refers to the checkbox on many job applications asking whether the applicant has a criminal record indicating one or more arrests, charges, or convictions. At a minimum, BTB laws prohibit employers from asking about criminal history during the initial stage of the job application process. Some laws go much further, such as New York City’s broad prohibition on employment discrimination based on criminal history. See N.Y.C. Admin. Code §§ 8-107(9) – (11-b).

In New Jersey, the OCA does not extend as far as New York City’s law, but it still provides several important protections. During the “initial employment application process,” employers may not inquire about an applicant’s’ criminal history, either verbally or in writing, nor may they require an applicant to provide such information in any other form. N.J. Rev. Stat. § 34:6B-14. Advertisements for job openings cannot state that an employer will not consider applicants with criminal histories. Id. at § 34:6B-15.

March 14, 2016

Employment Discrimination Based on Citizenship Status, National Origin Prohibited by Federal Immigration Law

by Resnick Law Group, P.C.

Title VII of the Civil Rights Act of 1964 is not the only federal statute that protects employees from discrimination in the workplace. The Immigration and Nationality Act (INA), which was first enacted in 1952, prohibits employers from discriminating on the basis of “national origin” and “citizenship status.” 8 U.S.C. § 1324b. Those two terms have specific meanings in this context. The U.S. Department of Justice (DOJ) enforces these provisions through its Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), and the Office of the Chief Administrative Hearing Officer (OCAHO) adjudicates claims. In late 2015, the OSC issued an opinion letter addressing questions about the extent of the INA’s anti-discrimination protections.

The INA prohibits discrimination in hiring, recruitment, and firing of individuals based on their national origin. It also prohibits discrimination in these areas on the basis of citizenship status, but only for “protected individuals,” whom it defines to include U.S. citizens, individuals who have recently attained lawful permanent resident status (i.e., a “green card”), and people who have been granted official status as refugees or asylees. 8 U.S.C. § 1324b(a)(3). These provisions are much narrower in scope than those of Title VII.

The INA states that its prohibition against national origin discrimination does not apply if the alleged discriminatory act violates Title VII’s provisions on national origin, meaning there is not intended to be any overlap between the INA and Title VII. Id. at § 1324b(a)(2)(B). The prohibition on discrimination based on citizenship only applies to “protected individuals,” as defined above, and it does not apply if an employer prefers to employ a U.S. citizen or national over an equally qualified non-citizen. Id. at 1324b(a)(4).

February 23, 2016

Laws in New Jersey and at Federal Level Prohibit “Pay Secrecy” Policies by Employers

by Resnick Law Group, P.C.

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.

February 19, 2016

New Jersey Lawsuits Allege Discrimination for Flu Shot Refusals

by Resnick Law Group, P.C.

Winter and spring are “flu season” throughout the U.S. and much of the world, and millions of people obtain flu vaccine shots in order to obtain some protection against the disease. Influenza, or the “flu,” can be a very serious disease. The health care industry has required employees to obtain annual flu shots for some time, but other employers have also begun to require flu shots. Some people cannot get flu shots for medical reasons, and others decline them for a variety of personal reasons. Several recent lawsuits have considered whether New Jersey law prohibits employers from taking adverse action against an employee who refuses to get a flu shot, based on various theories of religious discrimination.

For most people, a case of the flu means a few miserable days in bed, but it can mean hospitalization or even death for some. According to the Centers for Disease Control and Protection (CDC), the annual death toll from 1976 to 2007 ranged from a low of around 3,000 to a high of close to 49,000 in a single season. The vast majority of fatalities are people who are 65 years old or older.

Preparing a vaccine against seasonal influenza, the type of the disease that rears its head during the winter and spring months, is difficult, since it requires advance predictions of which strains are most likely to appear. Unlike vaccines for childhood diseases like measles and whooping cough, a flu vaccine obtained one year is not likely to provide protection beyond that year. It is also not guaranteed to prevent the flu. It only bolsters the immune system.

February 19, 2016

EEOC Publishes Guidance on Workplace Rights Under the ADA of People with HIV

by Resnick Law Group, P.C.

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).

January 8, 2016

New Jersey Supreme Court Considers Whether Firing an Employee for Getting Divorced Violates Anti-Discrimination Law

by Resnick Law Group, P.C.

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.

December 18, 2015

New Jersey Woman Alleges Her Employer Fired Her When She Requested Breastfeeding Breaks

by Resnick Law Group, P.C.

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).

December 11, 2015

Lawsuit Claims Sexual Harassment, Pregnancy Discrimination by New Jersey Hospital

by Resnick Law Group, P.C.

A lawsuit filed earlier this year by a former hospital security supervisor alleges sexual harassment and pregnancy discrimination. Russo v. Robert Wood Johnson Health Sys., No. L-003497-15, complaint (N.J. Super. Ct., Middlesex Co., Jun. 16, 2015). New Jersey law specifically prohibits pregnancy discrimination, while federal law considers it a form of sex discrimination. Both federal and New Jersey law consider sexual harassment to be a type of unlawful sex discrimination, to the extent that it either directly affects the conditions of employment or creates a hostile work environment.

The plaintiff worked for the defendant hospital from 2008 until June 2015. Her most recent position was as security supervisor. She alleges that her supervisor subjected her to various forms of sexual harassment, including “sexually explicit text messages and emails,” for a period of about two years. The supervisor’s behavior towards her changed, she claims, when he learned that she was pregnant in June 2013. Instead of sexually explicit remarks, he allegedly began making “disparaging and unwarranted comments about her work performance.” The plaintiff specifically states that she had requested a promotion and raise in spring 2013, after she had taken on additional job duties with her supervisor’s alleged approval. She claims that the supervisor never followed up on her request after learning of her pregnancy.

This sort of conduct continued, the plaintiff claims, throughout her pregnancy. Before she went on maternity leave in January 2014, the supervisor allegedly told her that taking leave would put her job in jeopardy. She returned to work in July 2014, and claims that her supervisor and others began harassing her with regard to issues like breastfeeding. She states that she was initially allowed to use her private office to pump breast milk, but the hospital’s human resources (HR) director eventually told her that she had to use a lactation room in a different building. Because of its location, the plaintiff claims that the time needed to walk there from her office and back would not give her enough time to complete her job duties.

November 5, 2015

Employment Lawsuit in New Jersey Claims Disability Discrimination Based on Obesity

by Resnick Law Group, P.C.

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.

October 9, 2015

Disability Discrimination Lawsuit Claims Defendant Refused to Hire Plaintiff Because of Plaintiff’s Disabled Son

by Resnick Law Group, P.C.

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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