Articles Posted in Employment Discrimination

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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.

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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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The Equal Employment Opportunity Commission (EEOC) recently celebrated the 25th anniversary of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq. The ADA helps ensure that people with disabilities have access to public buildings, public transportation, and private businesses considered “public accommodations.” It also protects disabled workers against discrimination and requires employers to provide them with reasonable accommodations. The difficulty tends to come in the applicability of the ADA’s definition of “disabled” to a particular worker, or the reasonableness of a requested accommodation under its specific circumstances. It is worth taking a moment to review the ADA and the ways it has been interpreted and adapted over the years.

In numerous ways, the ADA has literally changed the landscape of the country. Title II of the ADA requires government buildings and public transportation to allow access by disabled individuals. This might include wheelchair ramps, elevators, or assistance for people with impaired vision or hearing. Title III establishes similar requirements for “public accommodations”–private businesses that offer products or services to the general public, such as hotels, restaurants, theaters, grocery stores, gas stations, bus depots, libraries, parks, schools, day care centers, and golf courses. 42 U.S.C. § 12181(7). Title IV requires telecommunications service providers to make services available to people with hearing and speech impairments. 47 U.S.C. § 225.

Title I of the ADA prohibits employment discrimination based on disability. It also requires employers to make reasonable accommodations for disabled workers. Title V includes a prohibition on retaliation for asserting rights under any of the ADA’s provisions. Congress has added to the ADA’s protections with subsequent laws, such as the Americans with Disabilities Amendments Act (ADAAA) and the Genetic Information Nondiscrimination Act (GINA), which both became law in 2008.
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The Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff et seq., protects employees from privacy violations and discrimination in employment based on information obtained through DNA tests and other procedures. It also prohibits employers from requiring employees to submit DNA samples, with narrowly defined exceptions. Some states have similar laws, such as New Jersey’s Genetic Privacy Act of 1996, N.J.S.A. § 10:5-43 et seq., which amended the New Jersey Law Against Discrimination to prohibit employment discrimination based on “genetic information,” N.J.S.A. § 10:5-12(a). Few court decisions have considered the scope of these laws’ protections, however. A recent court decision and jury verdict, however, in Lowe, et al v. Atlas Logistics Group Retail Svcs. (Atlanta), LLC, No. 1:13-v-02425, complaint (N.D. Ga., Jul. 22, 2013), suggests that these laws could provide an very effective defense against discrimination and employer intrusions into employee privacy.

Congress enacted GINA in 2008, so the statute has not amassed much of a track record in the court system. The Equal Employment Opportunity Commission (EEOC) has brought suit under GINA in several cases around the country for a wide range of practices:

– In EEOC v. Fabricut, Inc., the EEOC alleged that an employer violated GINA by allegedly refusing to hire a job applicant it thought had carpal tunnel syndrome, and by asking for her medical history. The employer settled the suit for $50,000.
– A class discrimination suit against a New York nursing home, EEOC v. Founders Pavilion, Inc., claimed that the employer unlawfully requested genetic information from job applicants. The defendant settled for $370,000. A lawsuit against another New York nursing home with similar allegations, EEOC v. BNV Home Care Agency, is still pending.
– A lawsuit against several seed and fertilizer companies for alleged medical and genetic information inquiries during the hiring process, EEOC v. All Star Seed, Inc., et al., resulted in a $187,500 settlement.
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Legal protections for lesbian, gay, bisexual, and transgender (LGBT) individuals remain uncertain in many parts of the country, despite recent court victories. Fewer than half of U.S. states prohibit employment discrimination based on sexual orientation (the “LGB” part of the acronym) or gender identity (the “T” part). The New Jersey Law Against Discrimination (NJLAD) expressly prohibits both types of discrimination, but Title VII of the Civil Rights Act of 1964 only protects people from discrimination based on sex, race, color, religion, and national origin. A recent decision by the Equal Employment Opportunity Commission (EEOC), however, held that Title VII’s prohibition on sex discrimination already covers sexual orientation discrimination. Baldwin v. Dept. of Transportation, EEOC Appeal No. 0120133080 (Jul. 15, 2015) (PDF file). A 2012 decision, Macy v. Dept. of Transportation, EEOC Appeal No. 0120120821 (Apr. 20, 2012), held that this part of Title VII covers gender identity. These decisions only apply to federal employees, but they are still an important step forward. Most employment discrimination claims still require a careful analysis of federal, state, and city laws.

The complainant in the recent EEOC decision claimed that the Federal Aviation Administration (FAA) discriminated against him on the basis of his status as a gay man when it denied him a particular promotion, citing negative remarks allegedly made by his supervisor. The FAA dismissed his complaint as untimely, and he appealed to the EEOC. After finding that the complaint was timely, the EEOC ruled that the important question in a sexual orientation discrimination claim is not “whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions,” but “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.” Baldwin at 5-6, quoting Macy at 6. See also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The EEOC’s decisions in both Baldwin and Macy, interestingly, relied rather heavily on a Supreme Court decision written by Justice Scalia, who is not known for his support of expanded legal protections for LGBT individuals. The Supreme Court ruled in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), that a male oil-rig worker could sue for sexual harassment by male co-workers. Writing for a unanimous court, Justice Scalia stated that “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils.” Baldwin at 13, quoting Oncale, 523 U.S. at 79.
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The U.S. Supreme Court ruled in favor of a woman who claimed that a clothing retailer violated Title VII of the Civil Rights Act of 1964 when it turned down her job application. She specifically alleged that the retailer discriminated against her because she wore a headscarf as part of her religious practice as a Muslim, which the retailer claimed violated a policy on employee attire. The retailer claimed that she never requested a religious accommodation–such as an exception to the policy prohibiting headwear–and argued that it was not liable for any violation of her rights because it had no “actual knowledge” that she needed an accommodation. The Supreme Court disagreed, holding that the complainant only needed to prove that her need for a religious accommodation motivated the decision not to hire her. Equal Emp’t Opportunity Comm’n (EEOC) v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015).

The complainant was a teenager when she applied for a job at an Abercrombie & Fitch store in 2008. She wore a headscarf to her interview with an assistant manager at the store. The assistant manager determined that the complainant was qualified for the position. She was reportedly concerned, however, that the complainant’s headscarf violated the store’s “Look Policy,” which regulated how employees dress at work in an effort to maintain a consistent style across the retailer’s nationwide locations. The assistant manager took her concerns to the store manager, who stated that the headscarf violated the Look Policy and instructed the assistant manager not to hire the complainant.

The EEOC filed suit against the retailer in 2009 on the complainant’s behalf, alleging that the decision not to hire her was motivated by her religion, as signified by her headscarf, in violation of Title VII. A district court granted summary judgment for the EEOC on the question of liability. 798 F.Supp.2d 1272 (N.D. Ok. 2011). It awarded the complainant $20,000 in damages after a trial. The Tenth Circuit Court of Appeals, however, reversed these rulings and entered summary judgment for the defendant. It held that the defendant lacked “actual knowledge” of the complainant’s need for a religious accommodation because she failed to request it, and the defendant therefore could not be liable for religious discrimination under Title VII. 731 F.3d 1106 (10th Cir. 2013).
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Employment discrimination on the basis of age, especially against workers who are into or past what is often considered “middle age,” and who are looking for a job, does not always receive as much media attention as other forms of discrimination. The federal and state laws regarding this type of discrimination are also not as well known or understood. It is becoming more and more of a problem, however, as the American population ages. A few recent cases illustrate how an age discrimination claim in New Jersey might work.

Research regarding the issues faced by older workers indicates that people in their 50s or older tend to have a much harder time finding a job than younger workers. The discrimination is rarely overt, instead taking the form of certain reasons given not to hire someone, such as “You’re overqualified.” This can make discrimination difficult to prove, but the New Jersey Law Against Discrimination (NJLAD) allows claims for age discrimination in employment. N.J. Rev. Stat. § 10:5-12(a). The federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., also allows civil claims, but it only applies to workers above a certain age in certain situations.

The NJLAD provides relatively strong protection for workers asserting age discrimination claims. New Jersey courts have held that the statute preempts common law claims, such as breach of contract or breach of the covenant of good faith and fair dealing, if they are primarily based on alleged age discrimination. See Broad v. Home Depot USA, 16 F.Supp.3d 413, 419 (D.N.J. 2014). The ADEA protects workers who are 40 years of age or older against discrimination that is not based on a “reasonable factor other than age.” See 29 C.F.R. § 1625.7, 77 Fed. Reg. 19080 (Mar. 30, 2012). It also prohibits workplace harassment based on age. The statute does not, however, prohibit an employer from favoring an older employee over a younger one.
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The New York City Council passed legislation in April 2015 amending the city’s anti-discrimination law to prohibit employment discrimination based on information found in an employee’s or job applicant’s consumer credit history. This is part of a broader trend of laws at the city and state levels around the country that limit the use of background checks when making employment decisions. Similar laws have been introduced in the New Jersey Legislature, but they have not passed either chamber. New Jersey law offers some protection for consumers with regard to their credit information, including restrictions on when and how employers may access credit reports.

The federal Fair Credit Reporting Act (FCRA), the New Jersey Fair Credit Reporting Act (NJFRCA), and other statutes regulate the collection, distribution, and use of information by credit reporting agencies. These statutes define “consumer reports” in part as financial and personal information about a consumer, communicated in writing or verbally, that is intended for use “in establishing the consumer’s eligibility for…employment purposes.” 15 U.S.C. § 1681a(d)(1)(B), N.J. Rev. Stat. § 56:11-30(1)(b), N.Y. Gen. Bus. L. § 380-A(c)(1)(ii). Under New Jersey law, an employer may not obtain a person’s credit report unless they provide notice in a particular form to the person and obtain the person’s consent. N.J. Rev. Stat. § 56:11-31c.

The New Jersey statute does not prohibit an employer from taking adverse action against an employee or job applicant based, in whole or in part, on information contained in a consumer report. If the employer does take adverse action against a person, however, it must first provide the person with a copy of their consumer report and a notice of their rights under the NJFCRA and the FCRA. N.J. Rev. Stat. § 56:11-31e.
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Three airlines are facing allegations of unfair labor practices and sex discrimination in several proceedings. A coalition of U.S.-based airlines and labor unions issued a report earlier this year claiming that the three airlines, which are based in the Persian Gulf region and fly out of airports in New York and New Jersey, engage in unfair competition and unlawful employment practices. The federal government is investigating similar claims. An agency of the United Nations (UN) recently ruled that one of the airlines engaged in ongoing sex discrimination against female employees. While these proceedings generally involve international law and treaties, they could still have an impact on workers who deal with these airlines in New Jersey and New York.

The U.S. began entering into agreements with other countries known as “Open Skies Partnerships” (OSPs) in 1992. It currently has agreements with more than 100 countries. These agreements, according to the U.S. Department of State, allow airlines to expand international service by “eliminating government interference” in various air transportation matters. Since different countries provide different levels of protection for business and labor interests, however, OSPs can result in unfair advantages for some airlines.

A coalition of three U.S. airlines and labor unions, known as the Partnership for Open & Fair Skies (POFS), issued a report in early 2015 criticizing three airlines: Qatar Airways, based in Doha, Qatar; Etihad Airways, based in Abu Dhabi, United Arab Emirates; and Emirates Airlines, based in Dubai, UAE. All three airlines fly out of JFK International Airport in New York City, and Etihad Airways reportedly sometimes flies out of New Jersey’s Newark Liberty International Airport.
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Laws regarding medical–or even recreational–marijuana use are undergoing significant changes. Nearly half of the states in the U.S., including New Jersey, now allow marijuana use for at least some purposes. How this affects employees’ rights in New Jersey, however, remains unclear. The issue, which is far from resolved, pits individuals’ right to use marijuana against employers’ right to enforce anti-drug policies. A lawsuit filed last year in New Jersey, Davis v. New Jersey Transit Corp., No. L-001778-14, complaint (N.J. Super. Ct., Essex Co., Mar. 14, 2014), claims disability discrimination against a railroad employee with a valid medical marijuana prescription.

Marijuana remains a Schedule I controlled substance under federal law, 21 U.S.C. § 812(b)(1), and it is still generally illegal under New Jersey law, N.J. Rev. Stat. §§ 2C:35-10a(3)-(4). The New Jersey Compassionate Use Medical Marijuana Act, N.J. Rev. Stat. § 6I-1 et seq., which took effect in 2010, allows the medical use of marijuana under very strict limits. Rather than “legalizing” marijuana, the law creates an exception to state criminal law. N.J. Rev. Stat. § 2C:35-18. It provides that the lawful use of marijuana may not result in “civil or administrative penalt[ies],” N.J. Rev. Stat. § 24:6I-6b, but it does not specifically mention employment or disability protections.

The plaintiff in Davis worked as a procurement clerk for NJ Transit. His doctor gave him a prescription for medical marijuana to alleviate some of the symptoms of end-stage renal failure. He states that he notified his employer of the prescription, but was told that he had to submit to a drug test in December 2013. When the test was positive for marijuana, he was sent to a drug treatment program and lost his job. He filed suit for disability discrimination under the New Jersey Law Against Discrimination. N.J. Rev. Stat. § 10:5-12a. In August 2014, the court denied a motion to dismiss filed by the defendant. The case is still pending.
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