Articles Posted in Employment Discrimination

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An employer did not violate New York state or city human rights laws by firing an employee because of her height, according to a Supreme Court judge in Queens County. The court ruled in Peterson v. City of New York, et al, 2012 N.Y. Slip Op. 51472(U) (Sup. Ct., Queens Co., Aug. 7, 2012), that the plaintiff’s height was not a “genetic characteristic” protected by state law, as she presented no evidence of a genetic condition creating a risk of future illness or disability. It further found that the plaintiff failed to state a claim for relief under New York City’s civil rights law, which does not include protections for genetic conditions.

The plaintiff was employed by the New York City Parks Department from June 2010 until February 2011. Her job involved cleaning bathrooms and taking out trash at the Lost Battalion Hall in Queens. Of the five people employed at Lost Battalion Hall, the plaintiff claimed she was the shortest. Her supervisor allegedly told her that she was “too short” to do her job and that “there was something medically wrong with her.” Slip op. at *1. She alleges that the supervisor required her to see a doctor, and that he was verbally abusive towards her. The plaintiff claims that she rejected a different job offer from the supervisor on February 9, 2011, after which he fired her. She filed suit against the city and the supervisor, alleging violations of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).
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A nurse at a hospital in Flint, Michigan is suing her employer for alleged racial discrimination and civil rights violations. Battle v. Board of Hospital Managers of Hurley Medical Center, et al, No. 13-99763, complaint and jury demand (Mich. Cir. – Genesee Co., Jan. 21, 2013). She claims that the hospital reassigned an infant under her care to a different nurse after the infant’s father demanded a nurse who was not African American. The lawsuit, which names the hospital and a supervisor as defendants, asserts causes of action for equal protection violations, violations of state anti-discrimination law, and intentional infliction of emotional distress.

According to her complaint, the plaintiff, Tonya Battle, began working at Hurley Medical Center in June 1988 as a registered nurse (RN) in the hospital’s neonatal intensive care unit (NICU). She alleges that she was caring for an infant in the NICU on October 31, 2012, when the infant’s father asked to speak to her supervisor. The charge nurse then spoke to the father, and Battle allegedly heard him tell the charge nurse that “he did not want any African Americans taking care of his baby.” Complaint at 3. Battle also alleges that the man pulled up his sleeve to display a tattoo that she believed was a swastika. The charge nurse relayed the father’s request to the nurse manager, Mary Osika, who allegedly told the charge nurse to reassign the infant.
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The U.S. Department of Justice (DOJ) announced in January 2013 that it settled a claim of citizenship and national origin discrimination against Houston Community College (HCC), in lieu of filing suit. The DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigated a complaint of hiring discrimination, in the form of requests for specific documentation from non-citizens not requested of U.S. citizens. The OSC concluded that the practice violated the Immigration and Nationality Act (INA), which prohibits employment discrimination based on national origin or lawful immigration status. Under the terms of the settlement agreement, HCC will pay a civil penalty, adopt a new process of verifying employment eligibility, and create a fund to compensate prior victims for lost wages.

According to the settlement agreement between the DOJ and HCC, the OSC received a complaint on March 12, 2012 alleging national origin discrimination and other violations of the INA’s anti-discrimination provisions. The OSC’s investigation concluded that HCC had engaged in a practice, for a period of at least two years, that required non-citizens to produce documents during the hiring process demonstrating work authorization. Job applicants that HCC believed to be United States citizens were not required to produce such documentation during the hiring process. Proof of employment eligibility is normally required after hiring, when the employer must complete Form I-9, the Employment Eligibility Verification document. Although it found HCC’s practices to be discriminatory, it did not find that the complainant was a victim of discrimination.
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A former employee of a Secaucus, New Jersey furniture store chain has alleging that management discriminated against her based on her sexual orientation and retaliated against her for complaining of a manager’s discriminatory conduct. Perez v. Factory Direct of Secaucus, LLC, et al, No. 2:13-cv-00327, complaint (D.N.J., Jan. 17, 2013). The lawsuit currently claims violations of the Civil Rights Act of 1866 and the New Jersey Law Against Discrimination. An investigation of employment discrimination claims is still underway by the Equal Employment Opportunity Commission (EEOC), and the plaintiff has stated an intent to amend her complaint should the EEOC authorize her to do so.

The plaintiff, Isabel Perez, began working for the defendant, Factory Direct of Secaucus, which operates several Ashley Furniture HomeStore locations, on September 25, 2012. In her position as human resources director, she reported to the defendant Kathy Martin, the Director of People Services and Development, and defendant Eugene Chrinian, the CEO. Perez alleges that, during the interview process for the position with both Martin and Chrinian, both defendants questioned her extensively about her marital status and her religious beliefs. Perez, who is homosexual, preferred to keep such issues private, although she did discuss her religious beliefs briefly.

Perez alleges that Martin made frequent derogatory remarks in her presence about homosexuals, as well as discriminatory remarks about other employees based on their race, ethnicity, gender, or appearance. Perez claims that she brought up her concerns with Martin about Martin’s derogatory comments to employees, as well as Martin’s invocation of her religious beliefs in routine workplace issues. On at least one occasion, Martin allegedly told Perez “to be more understanding of the Company’s ‘culture.'” Complaint at 6. Martin began most meetings with prayers, Perez claims, including “unsolicited ‘laying of the hands’ on [Perez].” Id.
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A former manager at a “swanky” New York City hotel has filed a lawsuit accusing hotel management of discriminating against her because of her pregnancy. She alleges that her superiors told her repeatedly that she, possibly because of her age and race, was not a good fit in the hotel’s environment. She nevertheless worked eighty- to one-hundred-hour weeks, even well into her pregnancy. She was working when she went into labor, and ended up giving birth in a guest room at the hotel. After that, she alleges that management began eliminating her job duties, and then fired her on what she claims was a pretext.

Tara Tan claims that she helped build the Standard Hotel’s business in the four years that she worked there. Despite putting in long hours, even while pregnant, she alleges that her superiors told her she did not “fit the culture” of the hotel, a prominent nightlife spot in Manhattan’s Meatpacking District. Tan took this as a criticism of her Chinese heritage and her age, as compared to the young, mostly white, “model-like…beautiful people” she says the management preferred to have around. She had reportedly gained weight during an earlier difficult pregnancy, and endured harassment regarding her appearance before the pregnancy that immediately preceded her termination.

Tan was working a late shift on April 30, 2011 when she went into labor at around midnight. She claims that her superiors did not offer any assistance, allegedly because they did not want to disturb the hotel’s party scene. She was sent into a guest room on the fifteenth floor and waited for her husband, who came two hours later from their home in New Jersey. Tan also alleges that when she called the front desk to ask for help, the person on the phone asked if she was joking. The child was born soon after her husband arrived, at around 2:30 a.m. Tan’s husband assisted in the delivery, with Tan’s doctor offering guidance over the phone. They called for an ambulance, and hotel staff made them leave through a side exit so they would not disrupt hotel guests.
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A former model on the long-running daytime game show “The Price is Right” received a verdict totalling over $8 million in a suit against the show’s producers. The plaintiff alleged that the producers unlawfully discriminated against her because of her pregnancy by firing her after she took leave to give birth. Federal law prohibits discrimination in employment based on a worker’s gender, and includes pregnancy discrimination as a form of gender bias. Laws in most states, including New Jersey, include similar prohibitions.

Brandi Cochran worked as a model on the show for several years before becoming pregnant. She alleged in her complaint that she witnessed discrimination by the show’s producers against other models who became pregnant, and so decided not to reveal her pregnancy for some time in order, she believed, to protect her job. When Cochran informed one of the producers, the producer told her she knew, citing Cochran’s weight gain. Cochran alleged that another producer, upon learning of the pregnancy, began to avoid interacting with her and suggested that he would have fired her had he known of the pregnancy.

Cochran claimed that the producers made her announce that she was pregnant with twins on the air. After the announcement, she alleged, the producers reduced her work load. She also allegedly received ridicule regarding her weight gain from co-workers. Cochran miscarried one of the twins, and she gave birth to the other three months premature. The child had severe health problems, and Cochran said she had to balance caring for the child and attempting to lose weight so she could return to the show. She claimed that the producers would not commit to a return date, and she eventually learned that she had been fired after she was removed from the show’s website.
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In a decision that has already created a firestorm of controversy, the Iowa Supreme Court ruled that a dentist did not unlawfully discriminate against an employee based on her gender when he fired her because of his attraction to her. The court acknowledged in Nelson v. James H. Knight, DDS, P.C., No. 11-1857 (Iowa, Dec. 21, 2012), that the employer’s actions were unfair, but concluded that they were not motivated by the employee’s gender. Concerns over the employer’s marriage, the court found, was the primary reason for the firing. The court held that this was lawful even though the employee had done nothing wrong, but it also noted the potential for this decision to enable future employers to make similar claims in an attempt to justify otherwise unlawful firings.

The plaintiff, Melissa Nelson, began working for Dr. James Knight’s dental practice in 1999, when she was twenty years old and just out of school. She worked for him for ten-and-a-half years as a dental assistant. Both were married and had children by 2009, and Nelson testified that she viewed Knight as a “friend and father figure.” Slip op. at 3. Knight reportedly began to complain to Nelson during the last year and a half of her employment that her attire was inappropriate for the workplace, although Nelson denied wearing clothing that was too tight or otherwise inappropriate.

During the last six months of her employment, the two began communicating via text message. Some of the texts discussed matters of a sexual nature, but none indicated a sexual relationship between the two. Nelson said that she was not uncomfortable with the correspondence, although some of Knight’s texts could be described as explicit, such as a reference to bulging pants caused by her revealing clothing. Knight’s wife, who also worked for his practice, discovered their text correspondence in late 2009, and complained to him about it, calling it a “big threat to [their] marriage.” Id. at 4. In consultation with the couple’s pastor, Knight decided it was best to fire Nelson. He informed her of her termination on January 4, 2010, by reading a prepared statement with another pastor present. Knight acknowledged that Nelson had done nothing wrong, and that she was his best dental assistant. He later hired another woman to replace Nelson, and has always employed female dental assistants.
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Federal statutes like the Civil Rights Act of 1964 are widely-known and frequently invoked in cases of allegedly unlawful discrimination or harassment. The Civil Rights Act prohibits discrimination based on a wide range of factors, including race, gender, and religion. Other statutes also protect workers from specific types of discrimination. The federal Immigration and Nationality Act (INA), for example, prohibits employment discrimination based on national origin or, in some cases, citizenship status. While the principal purpose of this statute is to protect United States citizens, it can also protect immigrants with employment authorization in many situations.

Section 274B of the INA, codified at 8 U.S.C. § 1324b, prohibits employers from discriminating in hiring or firing individuals, as well as other features or benefits of employment, based on national origin. For United States citizens and legally-admitted immigrants, the statute prohibits discrimination based on citizenship status. This includes anyone admitted as a legal permanent resident, also known as a green card, and anyone authorized by immigration authorities to work in the United States. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) handles alleged discrimination in violation of the INA.

The law differs from other federal anti-discrimination laws in two important respects. First, it does not protect undocumented immigrants or immigrants without employment authorization. It also does not prohibit employers from giving U.S. citizens preference over non-citizens, provided the applicants are otherwise equally qualified. The statute specifically prohibits filing overlapping claims with the OSC and the Equal Employment Opportunity Commission (EEOC), which investigates alleged violations of the Civil Rights Act.
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The New Jersey Superior Court recently overturned a lower court’s summary decision dismissing the plaintiff’s claims of disability discrimination on the basis of her voluntary admission of alcoholism.Our New Jersey employment lawyers know it is a little-known fact that alcoholism is considered a disability, both under the Americans With Disabilities Act of 1990 and the New Jersey Law Against Discrimination. What this means is that you cannot be discriminated or retaliated against by your employer for seeking substance abuse treatment or for simply admitting you are an alcoholic or a drug addict.

This may not summarily protect your position if you show up for work intoxicated, if your job performance is poor or if you are putting others at risk. But in this case, the long-term employee was performing well and had no disciplinary issues. What’s more, the company’s internal policy on which her termination was based was found by the state’s Superior Court to be “facially discriminatory,” though the company vehemently defended it.

The case, A.D.P. v. Exxonmobil Research and Engineering Company, originated with a voluntary admission from the employee to her employer that she was an alcoholic and was in an inpatient rehabilitation center receiving treatment. This admission was not the result of an inquiry or pressure from the employer based on poor job performance. In fact, she was performing quite well. Regardless, the company, by its own policy, subsequently required the employee to undergo regular alcohol testing in the form of breathalyzer tests and mandated that she sign an agreement pledging to abstain from alcohol.

When the employee in turn failed a random breathalyzer test, she was fired.

The Superior Court found that because the employee’s required breathalyzer test was based not on job performance or imposed on every employee regardless of disability, the employer in fact was engaging in discrimination.

The court underscored the fact that the employer had not made her sign this agreement as part of a “last chance agreement,” which might have been extended to an employee on shaky ground stemming from poor performance due to alcoholism. The employee was not the subject of any pending disciplinary action or internal investigation. In fact, managers for the defendant testified that the employee’s work was exemplary, and that the tests were mandated on factors other than her job performance.

Therefore, the court ruled, it was discriminatory.

N.J.S.A. 10:5-1 outlines that employers may not terminate a defendant on the basis of a disability. As alcoholism is a disability, employers are required to make reasonable accommodations for alcoholics.

Because substance abuse is not widely accepted as a legitimate illness, many employers may not understand their responsibilities under the reasonable accommodations requirement. It doesn’t mean, for example, that an employer has to tolerate it if you come in late to work on a Monday or leave early on a Friday in order to binge. It does, however, mean the employer can’t target you for discipline because you sought substance abuse treatment or you had to leave a little early to attend an Alcoholics Anonymous meeting. Reasonable accommodation means an employer has to be willing to work with you on these matters, so long as it does not create an undue hardship.
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By signing into law new posting requirements aimed at combating pay and gender discrimination, Gov. Chris Christie advanced the fight for equal pay in the workforce.

Under the new law, companies that employ more than 50 people must post gender equality information in the workplace. This information must also be provided to employees at the time of hire, annually thereafter, and upon an employee’s request.The law is scheduled to take effect Nov. 21 and employers will have 30 days to comply once the New Jersey Department of Labor issues notice.

However, our NJ employment lawyers understand there is much work left to be done. Employees, particularly women, must remain vigilant in making sure they are fairly compensated, particularly in relation to men holding similar positions within the company.

Christie vetoed a measure that would have increased the reporting requirements for public contractors in an effort to better determine and enforce compliance. Those doing business within New Jersey would have been required to report gender, job title, occupational category, race and total compensation to the New Jersey Department of Labor.

“When Gov. Chris Christie had a chance to sign legislation I authored to prevent gender wage discrimination in public contracts, he vetoed the bill, calling it ‘senseless bureaucracy,'” wrote Assemblywoman Pamela Lampitt (D-Camden/Burlington), in the Star-Ledger. Lampitt is also chairwoman of the Assembly’s Women and Children Committee.

Christie said it would have been burdensome and would have ultimately driven up the cost of public contracts paid for by tax dollars.

However, fact remain that women continue to fight for the equal pay owed them for equal work; this remains particularly true for jobs traditionally held by men. Lampitt notes a nationwide annual gender wage gap of $15.8 billion. In New Jersey, women earn just 79 cents for every dollar a man earns in the workforce.

Christie returned two New Jersey employment discrimination bills to the legislature for significant amendments.

The first would have eliminated the statute of limitations for bringing compensation discrimination claims. The Christie Administration contends that asserting into the bill limitations on the amount of backpay that can be recover would bring it into better agreement with the holdings of the New Jersey Supreme Court and the Lilly Ledbetter Fair Pay Act of 2009. The governor proposed a two-year limit.

The next measure would have prohibited retaliation against employees requesting pay information. The governor recommended the provisions be included in the New Jersey Law Against Discrimination rather than being made part of NJ’s whistleblower law.

Establishing whistleblower protections is a key component that must be part of any real solution. The secrecy around pay in the workforce is one one the primary reasons why this form of silent discrimination is allowed to continue. Until employees who have reason to believe they are being paid unfairly are given access to compensation information, such discrepancies in pay will remain commonplace.
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