Articles Posted in Employment Discrimination

Service in the U.S. military and other uniformed services can mean a great deal of uncertainty. People who serve in the National Guard or Armed Forces Reserves have training obligations and may find themselves called to active duty. This can cause difficulties with employment in both the private sector and non-military government jobs. New Jersey employment law prohibits employers from discriminating based on military service obligations, but its protections only cover mandatory service in the Armed Forces. Federal law goes further by addressing servicemembers’ ability to return to their jobs after their service ends. The Uniformed Services Employment and Reemployment Rights Act (USERRA) turns thirty this year, having become law in October 1994. It offers important protections for New Jersey servicemembers.

Who Does USERRA Cover?

USERRA applies broadly to people on active or inactive duty in any of the uniformed services of the United States. This includes the six branches of the Armed Forces: the Air Force, Army, Coast Guard, Marine Corps, Navy, and Space Force. It also includes the Commissioned Corps of the Public Health Service and the National Oceanic and Atmospheric Administration. The Surgeon General, for example, is an officer with the Public Health Service.

In contrast, New Jersey’s antidiscrimination law only applies to mandatory active duty service in the Armed Forces. This includes service in a National Guard or Reserve unit and induction through a draft.
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When applying New Jersey employment laws dealing with discrimination, courts have long held that plaintiffs must prove that they suffered actual harm. This might involve the loss of a job, lower wages, or the loss of other benefits or features of employment. Many courts around the country have applied similar interpretations to laws like Title VII of the Civil Rights Act of 1964. A case pending before the U.S. Supreme Court could change how courts in New Jersey and nationwide interpret these laws. A police sergeant alleges that her employer discriminated against her based on sex by transferring her to a different position. The lower courts found that she had not established that an “adverse employment action” had occurred. A ruling in her favor could help plaintiffs prove unlawful discrimination in cases where the discrimination did not cause them to suffer major disadvantages.

Title VII prohibits discrimination based on several categories, including sex. Section 703(a)(1) of the statute addresses unlawful practices by employers. While it identifies several specific adverse actions, such as firing someone or refusing to hire them, it also includes a catch-all category that simply states employers may not “otherwise…discriminate” against employees or job applicants because of sex or other protected categories.

The plain language of § 703(a)(1) does not necessarily require proof that a discriminatory act had a negative impact. This might affect the amount of damages a plaintiff could receive, but under this view, it would not affect whether or not they could assert a claim. Most courts, however, have taken the view that some employment discrimination claims require proof that a plaintiff suffered tangible harm.
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New Jersey employment law protects workers from discrimination on the basis of numerous factors, such as race, religion, sex, disability, and national origin, to name only a few. In some cases, an employer’s unlawful actions clearly violate someone’s legal rights based on one of the protected categories identified in state and federal law. The categories can blur together in other cases, though. This can create confusion. It can also lead people to overlook claims that they might have under state and federal antidiscrimination laws. Some types of bias and discrimination can span multiple categories, including race, color, religion, and national origin. New Jersey employees should be aware of their rights when it comes to these types of issues.

Both the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Right Act of 1964 specifically identify race, color, religion, and national origin as protected categories. This means that employers may not take adverse actions against employees or job applicants on the basis of any of these factors. This includes refusing to hire someone, demoting them, firing them, or denying them opportunities to advance their careers. Employers may have to make reasonable accommodations for employees’ religion observances, as long as doing so does not create an undue burden.

Title VII does not provide definitions for the terms “race,” “color,” or “national origin.” It defines “religion” as including “​​all aspects of religious observance and practice.” The NJLAD does not define “religion,” “color,” or “national origin.” Its definition of race includes the common understanding of that term along with “traits historically associated with race,” such as hairstyles and types of hair.
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Workers who suffer injuries or illnesses may have protection against losing their jobs if they are temporarily unable to work. New Jersey employment laws prohibit discrimination on the basis of disability. The definition of this term under state law includes many temporary conditions that can arise from injury or illness. During the COVID-19 pandemic, thousands of people nationwide were unable to work at any given moment because of COVID infections. Emergency state and federal laws provided some forms of paid sick leave for people dealing with COVID. It largely fell to antidiscrimination laws to address disparate treatment because of COVID infections. The New Jersey Attorney General (AG) recently announced that his office had settled a disability discrimination claim against a community college district that allegedly fired an employee suffering from COVID rather than granting him accommodations to allow him to continue working. The settlement requires the employer to re-hire the employee and pay him damages.

The New Jersey Law Against Discrimination (NJLAD) provides a broad definition of “disability.” A person must have a condition that either “prevents the typical exercise of any bodily or mental functions” or “is demonstrable…by accepted clinical or laboratory diagnostic techniques.” COVID-19 meets this definition of “disability” since, among other effects, it can severely impact the respiratory system, leaving a person with limited ability to exert themselves.

Employers may not discriminate against employees or job seekers based on disability, as defined by the NJLAD. This means that an employer may not fire or refuse to hire someone based primarily on a disability. It also means that employers must provide reasonable accommodations that would allow employees with disabilities to do their jobs. “Reasonable” means that the requested accommodation may not be too much of a burden on the employer or their business.
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Despite a few recent setbacks in the U.S. Supreme Court, New Jersey continues to offer some of the most extensive protections against discrimination in the country. New Jersey’s employment laws, in particular, cover a wide range of protected categories. Employers may not discriminate against employees or job applicants on the basis of those factors. The U.S. Supreme Court recently issued a ruling in 303 Creative LLC v. Elenis that effectively allowed a private business to discriminate based on sexual orientation despite a state law prohibiting that practice. In response, the New Jersey Attorney General issued a statement affirming that the laws in this state “remain among the strongest in the nation” when it comes to providing protection “against bias and discrimination.” While the Supreme Court decision does not directly impact employment discrimination law, it is worth noting the protections that remain in place for LGBTQ+ people in New Jersey.

The New Jersey Law Against Discrimination (NJLAD) protects a wide range of people from discrimination and other adverse treatment in the workplace. Its protections specifically extend to:
– Affectional or sexual orientation;
– Gender identity; and
– Gender expression.

The statute defines these terms with more specificity. “Affectional or sexual orientation,” for example, addresses how a person directs “affectional, emotional, or physical attraction or behavior” towards other people. “Gender identity or expression” refers to situations in which a person’s gender identity, or their expression thereof, does not necessarily align with stereotypes commonly associated with one’s sex.
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In late 2022, Congress passed the Pregnant Workers Fairness Act (PWFA) as part of the budget bill. The PWFA expands federal protections for employees who are pregnant or have recently given birth. While Title VII of the Civil Rights Act of 1964 bars employers from discriminating against employees and job seekers based on pregnancy or childbirth, it does not require them to make reasonable accommodations for pregnant workers and new parents. Many New Jersey employment laws, including the New Jersey Law Against Discrimination (NJLAD), require reasonable accommodations for pregnancy and childbirth. The PWFA adds this requirement to federal law for employers with at least fifteen employees. The law took effect on June 27, 2023. The Equal Employment Opportunity Commission published a proposed rule implementing the PWFA on August 11. It will accept comments from the public through October 10.

Title VII, as amended by the Pregnancy Discrimination Act of 1978, defines discrimination “on the basis of pregnancy, childbirth, or related medical conditions” as a form of unlawful sex discrimination. This includes refusing to hire someone, firing them, or demoting them because they are pregnant. The NJLAD also prohibits these types of discrimination, and it goes a step further by requiring employers to provide reasonable accommodations. For example, a pregnant employee might need extra restroom breaks, as well as a workstation in a location that provides quick access to a restroom. They might need additional water breaks, or temporary light duty assignments because of doctor-ordered lifting restrictions.

The PWFA requires employers to provide reasonable accommodations for “the known limitations related to [an employee’s] pregnancy, childbirth, or related medical condition.” It uses the definition of “reasonable accommodation” found in the Americans with Disabilities Act (ADA) of 1990. The term “known limitation” may include any condition related to pregnancy or childbirth that an employee has communicated to their employer, regardless of whether it meets the definition of a “disability” under the ADA. This does not apply to accommodations that “would impose an undue hardship on the operation of the [employer’s] business.” The employer must demonstrate that a particular accommodation would impose such a burden.
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