Employment Discrimination

February 21, 2014

Third Circuit Court of Appeals Addresses Legal Definition of “Employer” in Sexual Harassment Case

A plaintiff could not maintain a sexual harassment complaint because the defendant was not her employer under state or federal law, according to a recent appellate court ruling. Plaso v. IJKG, LLC, No. 13-2565, slip op. (3rd Cir., Jan. 21, 2014). The plaintiff worked at the defendant’s business location, and the sexual harassment forming the basis of her complaint allegedly took place there. Her salary and the authority to hire or fire her, however, originated with another company. Although the court ruled against the plaintiff, she was able to settle claims with the alleged harasser and the company that employed both of them. The case offers useful guidance for New Jersey workers considering a claim sexual harassment or other forms of employment discrimination
The U.S. Supreme Court developed a three-part test to determine whether a party is an “employer” in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), and the Third Circuit has adopted the test for Title VII and other laws. It identifies the party that has “the right to control the manner and means” of the plaintiff’s employment, id. at 323-24, through three “indicia of control”: (1) who pays the worker’s salary, (2) who has the right to hire and fire the worker, and (3) who controls the worker’s “daily employment activity.” Plaso, slip op. at 9, quoting Covington v. Intern. Ass’n of Approved Basketball, 710 F.3d 114, 119 (3rd Cir. 2013).

The plaintiff began working for a consulting firm based in Ohio, Healthcare MCR, in early 2008. Her direct supervisor, R. Brent Martin, assigned her to work at the office of a client, Bayonne Medical Center (BMC) in Bayonne, New Jersey. Martin also worked there as Chief Restructuring Officer. The plaintiff worked at BMC five days a week; had her own office, along with telephone and email account; and interacted with BMC staff on a daily basis. Martin was usually working at BMC, and the plaintiff went through him for most employment concerns, such as work hours and leave. Her paycheck came from Healthcare.
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February 6, 2014

Pregnancy Now a Protected Class Under New Jersey’s Law Against Discrimination

by Resnick Law Group, P.C.

New Jersey Governor Chris Christie signed a bill into law in late January 2014 amending the New Jersey Law Against Discrimination (LAD) to include pregnancy as a protected class. The LAD has long protected employees from discrimination based on sex and disability, but it did not include pregnancy as a distinct class until now. New Jersey’s law, in addition to prohibiting discrimination and retaliation based on pregnancy or childbirth, identifies specific examples of reasonable accommodations employers should provide.

Strong protections for pregnant employees are critically important, as many women find it necessary to continue working well into their pregnancies. According to a report issued last year by the National Women’s Law Center, about two-thirds of first-time mothers worked during their pregnancies between 2006 and 2008, compared to only forty-four percent between 1961 and 1965. Of the women who worked while pregnant from 2006 to 2008, eighty-eight percent of them worked through their last two months of pregnancy, and eighty-two percent worked into the last month. Their income is also generally indispensable, as the study found that women are the primary “breadwinners” in forty-one percent of families, with more women in that role among lower-income households. The laws relating to pregnancy and employment, however, are still changing to reflect these realities.

Federal law, under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, also protects against discrimination based on pregnancy. The PDA added pregnancy as a distinct type of gender discrimination. It addresses discrimination and retaliation for covered employers, but not reasonable accommodations. The Americans with Disabilities Act (ADA) applies to pregnancy discrimination, although neither the courts nor the Equal Employment Opportunity Commission (EEOC) have defined employers’ obligations to accommodate employees under this law. Only eight states, including New Jersey, specifically include pregnancy as a protected class in their anti-discrimination laws. Some cities, like New York, include it in their anti-discrimination ordinances.
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January 15, 2014

Hudson County Jury Awards Former Public Safety Director $440,000 in Back Pay for Unlawful Race Discrimination

by Resnick Law Group, P.C.

An eight-member Hudson County jury has awarded a former City of Hoboken employee $440,000 in back wages for discrimination. In the lawsuit, former Public Safety Director Angel Alicea, who is Hispanic, alleged that he resigned from his position in 2011 after he suffered race discrimination and retaliation at the Hoboken Police Department. Alicea also claims Mayor Dawn Zimmer intentionally underpaid him, sought to replace him with a white man, and attempted to destroy his reputation.

When he resigned, Alicea was reportedly earning $27,000 per year in his part-time role with the city. He was later replaced by a full-time employee who earns $110,000 annually. At trial, Mayor Zimmer testified that Alicea was asked to resign after she discovered the former Public Safety Director lied to her about meeting with a key witness in a high profile sting operation. According to Alicea, the meeting Mayor Zimmer described never took place. Alicea stated he believes he was asked to resign under threat of being fired for disclosing alleged improprieties related to steroid use and drug testing within the department.

Although a majority of jurors found the City of Hoboken discriminated against Alicea, their verdict stated Mayor Zimmer did not engage in illegal race discrimination against the man. The next day, a separate hearing regarding punitive damages was cancelled after the parties reached a settlement agreement. That agreement is now pending approval before the Hoboken City Council.
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December 5, 2013

New Jersey Law Protects Workers from Discrimination Prohibited by Proposed Federal Employment Non-Discrimination Act

by Resnick Law Group, P.C.

The United States Senate has passed a bill designed to protect gay, lesbian, bisexual, and transgender workers across the country from discrimination. The Employment Non-Discrimination Act would prohibit employers with at least 15 workers from engaging in discrimination against an employee based upon his or her sexual orientation or gender identity. The bill also provides an exemption for religious institutions and the military. The measure was passed after two Independent, 10 Republican, and 52 Democratic Senators voted in favor of the bill. The proposed law will now move on to the House of Representatives for consideration.

Despite the bill’s bipartisan success in the Senate, House Speaker John Boehner reportedly opposes the workplace rights bill. A spokesperson for House Majority Leader Eric Cantor, Rory Cooper, stated the proposed measure is not currently on the legislative schedule. President Obama stated it is his hope that the bill will be considered, passed, and sent to his desk for signature quickly. It is unclear, however, whether the measure will be ever considered by the House.

Although a number of state anti-discrimination laws are in place, there is currently no federal law that protects gay, lesbian, bisexual, and transgender workers in the U.S. from discrimination. The landmark Employment Non-Discrimination Act was first introduced to the Congress in 1994. Since then, the measure was re-introduced each year with varied success. In 1996, the proposed law failed in the Senate by only one vote. In 2007, the measure was passed by the House of Representatives but not the Senate.
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December 3, 2013

Exxon to Begin Offering Same-Sex Spousal Benefits in New Jersey and Across the U.S. Amid Allegations of Sexual Orientation Discrimination

by Resnick Law Group, P.C.

In September, Exxon Mobil Corporation announced that the company would begin offering benefits to the legally married same-sex spouses of employees in the United States. According to a spokesperson for the company, Alan Jeffers, the change was made in response to official guidance that was issued by the nation’s Department of Labor after the Supreme Court struck down the federal Defense of Marriage Act in June. Jeffers stated that Exxon has not changed its criteria for benefits eligibility. He added that the oil and gas company offers same-sex spousal benefits in at least 30 nations consistent with local legal requirements.

Despite the change, Exxon has been accused of failing to adequately protect gay workers and applicants in the past. This year, the Human Rights Campaign ranked the company dead last when compared with other corporate gay, lesbian, and transgender employee anti-discrimination policies. In addition, a lawsuit alleging sexual orientation discrimination against a gay job applicant was recently filed against Exxon in the State of Illinois.

All current or potential employees in New Jersey who are members of a protected class are protected from workplace discrimination. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating based on race, religion, color, sex, or national origin. Additionally, New Jersey’s Law Against Discrimination (LAD) makes it unlawful for an employer to discriminate in any job-related action on the basis of any of the statute’s protected categories. LAD protected categories include sexual orientation, gender identity or expression, race, sex, pregnancy status, creed, color, national origin, nationality, ancestry, age, marital status, mental or physical disability, and others.
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December 3, 2013

Jury Verdict Sends Message to Employers that Disability Discrimination is Unacceptable in New Jersey and Across U.S.

by Resnick Law Group, P.C.

A federal jury has ruled in favor of a 25-year-old mentally disabled man who was discriminated against by his employer in Texas. According to a lawsuit filed against the Kroger chain of grocery stores, the mentally challenged former employee worked at one of the company’s stores without incident for four years before he was transferred to a grocery store in Plano. The man claims a store manager began verbally abusing him and calling him names about one-week after the transfer. The 25-year-old also alleges that he was regularly asked to perform duties by himself that normally required at least two people. Approximately one year after he was transferred, the disabled man filed a discrimination and harassment lawsuit against the company. The young man also claims he was fired as a direct result of filing the legal complaint.

After four days of testimony regarding the alleged harassment endured by the mentally challenged 25-year-old, a jury issued an award of $450,000 in damages. His father stated he was happy with the verdict because it sends a message to employers that discrimination against the disabled will not be tolerated. A representative for Dallas-based Kroger said the company is currently considering whether to appeal the jury’s verdict.

Unfortunately, not all disability discrimination is immediately so obvious. Sadly, many employers in New Jersey and elsewhere choose to unlawfully discriminate against or harass workers who suffer from a disability due to biased thinking. Disabled persons in New York and New Jersey have a right to expect that their employers will provide them with reasonable accommodations that allow them to perform their essential job duties. If a disability does not physically prevent a worker from performing his or her job requirements, an employer has no legal basis on which to discriminate. If your request for reasonable accommodations at work due to a disability was denied, your rights may have been violated.
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November 1, 2013

New Law Protects Social Media Account Privacy for New Jersey Workers and Job Applicants

by Resnick Law Group, P.C.

Increasingly, Americans are utilizing social media accounts like Facebook, Twitter, LinkedIn, Google+, and more both on and off the job. In recent years, a growing number of employers have reportedly asked workers and job applicants for access to their personal social media accounts as a condition of employment. In response to this practice, Governor Chris Christie recently signed into law a bill that prohibits New Jersey employers from requesting access to the personal social media accounts of workers or job candidates.

Companies who violate the new social media law will be subject to a $1,000 fine for the first offense and a $2,500 fine for each additional offense. The measure also allows employees and applicants the option to seek financial compensation for lost earnings from an employer who violates the law. Additionally, employers may not require a job candidate to waive any of the protections of the law as a condition of hiring, and they may not retaliate against a worker for exercising any rights guaranteed by the legislation.

The measure, which goes into effect on December 1st, does not apply to employer policies related to use of company-issued electronic devices such as laptops and smartphones. Also, employers are not prohibited from viewing employee or candidate information that is generally available to the public. State and local law enforcement agencies are not required to adhere to the provisions of the new law.
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August 27, 2013

Disabled Workers in New Jersey and Nationwide May Suffer Discrimination

by Resnick Law Group, P.C.

According to data filed with the nation’s Department of Labor (DOL), Goodwill Industries paid disabled workers in at least 10 states an hourly wage of less than 22 cents in 2011. In fact, two Texas locations reportedly paid more than 50 employees less than a dime per hour. Additionally, an Ohio location allegedly paid a disabled worker a paltry three cents per hour. Goodwill franchises in Florida, Maryland, Michigan, North Carolina, Oklahoma, Pennsylvania, Virginia, and Wisconsin purportedly paid employees 21 cents per hour or less between 2008 and 2011. In contrast, Goodwill executives generally earn at least a six-figure annual income.

A little-known federal law reportedly allows Goodwill Industries and other non-profit groups to pay disabled workers wages that fall below the national minimum. Section 14 (c) of the Fair Labor Standards Act allows employers to pay disabled employees based upon their abilities so long as the employer obtains a wage certificate from the DOL. The law, however, was passed in 1938. According to the National Council on Disability’s Clyde Terry, organizations like Goodwill have failed to maintain appropriate wage levels for disabled employees. As a result, Terry believes that disabled persons are often devalued by their employers. He also stated sheltered workshops like those run by Goodwill should be phased out.

Section 14 (c) apparently allows non-profit employers to use so-called time studies to determine the pay rate for disabled employees. The studies reportedly use a stopwatch to determine the amount of time it takes each worker to complete an assigned task. That rate is then compared with the amount of time it takes an employee who is not disabled to complete the same task. Disabled worker pay rates may fluctuate as time studies are allegedly completed once every six months. Goodwill data shows that 69 franchises in the United States employ about 7,300 disabled workers who are currently eligible to receive an hourly wage below the federal minimum of $7.25.

Although Goodwill apparently acted within the limits of federal law, many disabled workers suffer reprehensible and illegal discrimination. Too many employers in New Jersey and across the nation choose to unlawfully discriminate against employees who suffer from a disability as a result of biased thinking. If an individual’s disability does not physically prevent the performance of any essential job duties, an employer has no legal basis to discriminate. If you feel that you suffered discrimination at work as a result of your disability, you are advised to contact a quality employment lawyer to discuss your rights.
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August 20, 2013

EEOC Settlement Reminds Employers in New Jersey and Across U.S. to Refrain from Unlawful Religious Discrimination

by Resnick Law Group, P.C.

The United States Equal Employment Opportunity Commission (EEOC) has agreed to settle a religious discrimination complaint filed against the owners of a hotel chain for $45,000. According to the EEOC, the Comfort Inn Oceanfront South in Nags Head, North Carolina refused to honor an employee’s request not to work on her Sabbath. Although the employee’s religious accommodation was initially honored, a new management team allegedly began requiring the woman, who is a practicing Seventh-Day Adventist, to work on Saturdays. After the worker refused to work on her Sabbath, her employment was purportedly terminated.

The EEOC filed a lawsuit against the hotel chain under Title VII of the Civil Rights Act of 1964, which forbids religious discrimination. As part of the settlement agreement, the hotel chain agreed to pay the terminated employee $45,000, implement new operating policies designed to protect workers from religious discrimination, and provide employees with anti-discrimination and anti-retaliation training. In addition, the hotel owners agreed to provide the EEOC with information related to any religious accommodation requests received in the future.

Regional Attorney for the EEOC’s Charlotte District Office, Lynette A. Barnes, stated no worker should be required to choose between employment and religion. Barnes added that employers have an obligation to accommodate the religious needs of employees where there is little impact on the conduct of their business.

Employers in New Jersey are required to make reasonable accommodations for workers with regard to religious holidays and other needs. Generally, discrimination has occurred if an employer fails to make religious accommodations that do not have a major impact on business operations. Employees have a right under both state and federal law to sue for damages if they were discriminated against. In order to recover damages for discrimination, however, workers must be part of a group that is protected by statute. Employees who were discriminated against based upon their religion, age, gender, pregnancy status, race, military status, disability, and more may have a discrimination claim against an employer.

In many cases, employers discriminate against protected classes of individuals by refusing to hire, demoting, terminating, or harassing them. In 2011, the EEOC reportedly filed nearly 2,000 employment lawsuits in New Jersey. Of those, 89 cases involved religious discrimination. If you were the victim of religious or other discrimination in the workplace, you should contact a quality employment attorney to discuss your rights.
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August 7, 2013

FDNY Settles Unlawful Gender Discrimination Lawsuit for $1.25 Million

by Resnick Law Group, P.C.

The Fire Department of New York (FDNY) has reportedly settled a sex discrimination lawsuit that was filed against the organization by five former and current female emergency medical service (EMS) workers in 2006. According to the women, systemic gender discrimination prevented them from being promoted to higher levels within the EMS despite positive work evaluations. As part of the settlement, the City of New York agreed to pay the women a combined total of $1.06 million in back pay and $261,000 in damages. Additional financial adjustments will also be made to the women’s individual pension plans.

Currently, FDNY promotions up to the lieutenant level are determined using a Civil Service Examination. All higher level appointments, however, are apparently discretionary. According to the lawsuit, only 16 percent of the 400 captains and lieutenants employed in the EMS are women despite that 947 of the 2,500 FDNY EMS workers are female. As part of the settlement agreement, the FDNY agreed to change its hiring practices and work to encourage more women to apply for high level positions within the organization. In addition, the women who suffered gender discrimination also agreed to retire from EMS.

Employers in New York, New Jersey, and the rest of the nation are not legally required to treat all of their employees fairly. For example, it is not always unlawful if an employer engages in favoritism, nepotism, or “office politics.” A worker who is unfairly treated may only seek legal action where the discrimination was a result of his or her age, gender, race, pregnancy status, mental or physical disability, color, national origin, religion, sexual orientation, veteran or military status, or another legally protected status.

As this situation proves, some women experience difficulty with being promoted at work due to gender discrimination. This type of unlawful discrimination often results in decreased responsibility, influence, and pay regardless of a female worker’s qualifications or experience. Although either sex is capable of engaging in gender discrimination, most cases occur when someone in power expresses a preference for members of his or her own gender. Still, individuals may choose to discriminate against co-workers who are the same gender. Regardless of who is being discriminated against, all sex discrimination is illegal.
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