Employment Discrimination

October 8, 2021

New Jersey Federal Lawsuit Alleges Race Discrimination in Employment Background Checks

A criminal conviction can have long-lasting effects on a person’s life, even after they have completed their sentence. Many employers refuse to hire applicants with felony records, and sometimes even having a record of an arrest can work against a person. Numerous states, including New Jersey, have enacted laws that restrict the use of criminal history in hiring to various degrees. The goal is to help people restart their lives once they have “repaid their debt to society,” as the saying goes. New Jersey employment laws bar employers from asking about criminal history in the early stages of the hiring process. They are not the only safeguard for job seekers looking for a fresh start. The use of criminal history in hiring can lead to discrimination on the basis of race. A putative class action filed this summer in a New Jersey federal court makes this allegation against a national retail chain.

Laws that restrict employer inquiries about criminal history are informally known as “ban the box” laws, in reference to the checkbox on many job applications asking whether an applicant has a criminal record. New Jersey’s law does not go as far as other laws. It bars employers from asking applicants about criminal history during the “initial employment application process.” After that, employers may ask, and the law does not restrict how they may use the information they obtain. Laws in some other jurisdictions prohibit employers from discriminating against job applicants on the basis of criminal history, with exceptions when an applicant’s history is directly relevant to the job they are seeking.

Laws like Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination on the basis of race. This includes both overt discrimination that treats members of one race differently from others, and “disparate impact” discrimination, in which a seemingly neutral policy or practice has a disproportionately negative effect on members of one race. A plaintiff claiming disparate impact discrimination does not need to prove that the employer intended to discriminate. They only need to show that the policy or practice was not reasonably necessary for the employer’s business operations, and that it negatively affected one race more than others.
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October 1, 2021

U.S. Justice Department Settles Discrimination Claims Against Two New Jersey Employers

by Resnick Law Group, P.C.

Federal law prohibits employers from discriminating against employees and job seekers on the basis of a variety of factors. Race, sex, and religion might be the most well-known categories protected by federal employment antidiscrimination law, but they are not the only ones. In addition to those three, Title VII of the Civil Rights Act of 1964 also bars discrimination based on color and national origin. Other federal statutes address discrimination on the basis of age, disability, and genetic information. The Immigration and Nationality Act (INA) of 1952 states that employers may not discriminate against employees and job applicants on the basis of national origin or citizenship status, provided that they are authorized to work in the U.S. Earlier this year, the U.S. Department of Justice (DOJ) announced that it had settled immigration discrimination claims against two New Jersey employers. If you have concerns about discriminatory practices in the workplace, reach out to a New Jersey employment discrimination lawyer as soon as possible.

Immigration law in the U.S. is quite complicated. In overly-simplified terms, people present in the U.S. can be described as belonging to one of five groups:
1. U.S. citizens;
2. Lawful permanent residents;
3. Nonimmigrant visa holders with employment authorization;
4. Nonimmigrant visa holders without employment authorization; and
5. Undocumented immigrants.
People enrolled in programs like Deferred Action for Childhood Arrivals (DACA) do not quite fit into these categories, since they may be authorized to work despite being considered undocumented. The key factor in the INA’s employment discrimination provisions is whether an individual can legally work in the U.S.

The INA states that employers with three or more employees may not discriminate on the basis of national origin or citizenship, with the exception that they may “prefer equally qualified citizens” over non-citizens. It is also unlawful for an employer to require “more or different documents” than those required to prove employment authorization under the INA, or to refuse to accept seemingly valid documents. Individuals may file a discrimination complaint with the DOJ. They may not, however, file a complaint of national origin discrimination with the DOJ if they have already filed a Title VII complaint with the Equal Employment Opportunity Commission alleging national origin discrimination.
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September 3, 2021

Commission Issues Guidelines on New Jersey’s Recreational Cannabis Law, but Leaves Employment Issues Out

by Resnick Law Group, P.C.

The New Jersey Legislature passed a law last year legalizing recreational cannabis. The governor signed it into law in February 2021. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) legalizes the possession and use of cannabis by people who are at least 21 years old. It also clarifies some issues related to employment law and establishes standards for workplace drug testing. In August 2021, the New Jersey Cannabis Regulatory Commission (NJCRC) issued guidelines on legal issues surrounding the personal use of cannabis. The guidelines do not address various employment issues, instead deferring them to a later date.

CREAMMA amends existing state law to include employment protections related to lawful cannabis use. Despite laws authorizing its use to varying degrees in most states, cannabis remains a Schedule I controlled substance under federal law. Many employers have continued to ban cannabis use by employees, even when they are not on the job, as part of broader “drug-free workplace” policies.

Earlier New Jersey cannabis laws legalizing its use did not provide any employment protection for individuals who used cannabis in compliance with the law, such as for medical purposes with a doctor’s prescription. Section 24:6I-52(a)(1), newly added by CREAMMA, bars employers from discriminating against employees based on both legal cannabis use and refusal to engage in legal cannabis use. They are also barred from discriminating against an employee because of “the presence of cannabinoid metabolites in the employee’s bodily fluid,” when this is the result of lawful conduct.
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July 19, 2021

EEOC Issues New Guidance on Sexual Orientation and Gender Identity Discrimination Under Title VII

by Resnick Law Group, P.C.

Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of sex and other factors. Compared to New Jersey employment discrimination law (the New Jersey Law Against Discrimination), Title VII’s list of protected categories seems short. Federal court decisions have expanded the scope of the statute beyond the narrowest literal meaning of its words, to include categories or actions mentioned more specifically in other laws. Most recently, a 2020 decision by the U.S. Supreme Court held that Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. In June 2021, the Equal Employment Opportunity Commission (EEOC) released guidance clarifying its interpretation of Title VII in light of the court’s ruling.

Federal law does not provide a specific definition of “sex” in the context of employment discrimination. The Supreme Court has built on the statute’s rather sparse language in several important rulings. In 1986, for example, the court ruled in Meritor Savings Bank v. Vinson that sexual harassment constitutes sex discrimination in violation of Title VII. That case involved sexual harassment of a female employee by a male supervisor. The court ruled in Oncale v. Sundowner Offshore Services in 1998 that sexual harassment of a man by male employees may also violate Title VII.

The Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins expanded the understanding of sex discrimination by holding that Title VII bars discrimination on the basis of “sex stereotyping.” The plaintiff in that case claimed that the defendant discriminated against her because she did not conform to expectations of how she should dress and behave as a woman. This decision did not lead directly to last summer’s ruling in Bostock v. Clayton County, but it set an important precedent.
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July 9, 2021

New Jersey Senate Passes Bill Dealing with Sexual Harassment in Political Campaigns

by Resnick Law Group, P.C.

New Jersey employment discrimination law prohibits sexual harassment in almost every workplace in the state, but it still remains a serious problem. Lawmakers in Trenton introduced a bill at the beginning of 2021 that sought to address sexual harassment in political campaigns. After several revisions and amendments, the New Jersey Senate passed the bill in June 2021. A companion bill, introduced in the Assembly in February 2021, is still awaiting a committee hearing.

Sexual harassment is viewed under state and federal law as a form of unlawful discrimination on the basis of sex. Court decisions interpreting statutes like the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 have identified two broad categories of actionable sexual harassment:
– “Quid pro quo sexual harassment” occurs when a person must submit to some sort of sexual demand as a condition of employment, such as a manager who hands out favorable shift assignments or other perks to employees who agree to sexual activity.
– “Hostile work environment” involves unwelcome conduct of a sexual nature in the workplace, which is pervasive or severe enough that a reasonable person would find it to be hostile and incompatible with a safe workplace.

Both statutes also prohibit employers from retaliating against employees who oppose or report unlawful practices. While these laws protect a wide range of workers, sexual harassment in the political realm can be complicated. Title VII excludes the federal government itself from liability for discrimination and harassment, but other statutes allow claims against government employees, and even elected officials. See, e.g. 42 U.S.C. § 2000e(b)(1), 2 U.S.C. § 1311. The NJLAD, on the other hand, includes “the State…and all public officers” in its definition of “employer.” N.J. Rev. Stat. § 10-5:5(e).
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June 18, 2021

New Jersey Supreme Court Rules for Plaintiff in Disability Discrimination Lawsuit

by Resnick Law Group, P.C.

The Resnick Law Group achieved a major victory for one of our clients earlier this month, when the New Jersey Supreme Court ruled that she did not have to show an “adverse employment action” in order to bring a claim under New Jersey disability discrimination law. The plaintiff alleged that her employer failed to provide a reasonable accommodation for her, and that this resulted in life altering injuries to her. The court also ruled that the claim was not barred by the state’s workers’ compensation law.

The New Jersey Law Against Discrimination (NJLAD) protects workers against discrimination on the basis of disability. It defines this term very broadly to include illnesses that are “demonstrable…by accepted clinical or laboratory diagnostic techniques.” The text of the NJLAD itself does not specifically require employers to make reasonable accommodations for employees with disabilities, but the New Jersey Administrative Code requires accommodations as long as they do not present an “undue hardship” for the employer. Failure to provide an accommodation is an “unlawful employment practice” under the NJLAD.

One question before the New Jersey Supreme Court was whether a plaintiff has to show an adverse employment action in order to make a claim for failure to accommodate a disability. An “adverse employment action” has typically been defined as a termination, suspension, or demotion. For the first time however, the high court decided that employees that suffer from a disability and do not necessarily fall into the above categories are also entitled to relief, and determined that an “adverse employment action” is not required to be shown in a reasonable accommodation case.
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June 10, 2021

How New Jersey Employment Laws Protect Job Applicants During the Hiring Process, Part 1: Discrimination and Equal Pay

by Resnick Law Group, P.C.

New Jersey’s employment laws protect workers from a wide range of concerns. They guarantee payment of a minimum wage and compensation for overtime work. They prohibit discrimination on the basis of factors like race, religion, gender, disability, military service, sexual orientation, gender identity, and more. They require reasonable accommodations for pregnant employees and employees who are nursing newborns. These protections apply to job applicants as well as employees, with the goal of ensuring a fair hiring process with opportunities for as many people as possible. Enforcing these rights may require the assistance of an employment lawyer with experience in New Jersey’s legal system. The following is the first installment in an overview of New Jersey laws protecting job seekers, to help you understand your rights.

Employment Discrimination

Employers may not subject employees or job applicants to discriminatory treatment based solely or primarily on certain factors or characteristics. This includes refusing to hire someone because they are part of a protected group. For a job applicant turned down for a job, it can be difficult to prove what motivated an employer’s decision. An employment discrimination lawyer can help build a case under state law.

Protected Categories

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of the following factors:
– Race;
– Religion;
– Gender;
– Age;
– Disability;
– Pregnancy or breastfeeding;
– Marital, civil union, or domestic partnership status;
– Sexual orientation;
– Gender identity and gender expression;
– Military service obligations;
– Nationality or national origin; and
– Genetic information, including refusal to take a genetic test.
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April 15, 2021

New Jersey Lawsuits Allege Disability Discrimination Based on Drug Test Results

by Resnick Law Group, P.C.

New Jersey employment laws bar discrimination based on disability. An employer cannot fire an employee or subject them to other adverse actions because of an injury, illness, or other condition that significantly affects their lives. State law uses a broad definition of “disability” that includes physical and mental conditions. Two lawsuits currently pending in New Jersey’s federal district court allege disability discrimination based on use of prescribed medication. One suit involves a plaintiff with a prescription for medical marijuana. The other involves an amphetamine-based medication used to treat attention deficit hyperactivity disorder (ADHD). The defendant in both cases is a major online retailer that operates multiple warehouses and distribution centers in New Jersey.

“Disability,” according to the New Jersey Law Against Discrimination (NJLAD), includes “any mental, psychological, or developmental disability…which prevents the typical exercise of any bodily or mental functions,” or which can be identified “by accepted clinical or laboratory diagnostic techniques.” N.J. Rev. Stat. § 10:5-12(q). The statute requires employers to make reasonable accommodations for employees’ disabilities. Failure to do so is an unlawful practice under the NJLAD.

New Jersey passed a law in 2009 authorizing the distribution and possession of small amounts of marijuana for medical purposes with a doctor’s prescription. As originally written, the law stated that it did not require employers “to accommodate the medical use of marijuana in any workplace.” It was not clear whether this meant the literal use of marijuana while at work, or if it allowed employers to enforce policies regarding marijuana use regardless of an employee’s medical needs. The New Jersey Supreme Court ruled in 2020 that a plaintiff could bring a disability discrimination claim under NJLAD based on lawful medical marijuana use. The New Jersey Legislature also amended the statute to remove the language about employers and accommodations.
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March 19, 2021

New Jersey’s Recreational Cannabis Law Includes Employment Protections

by Resnick Law Group, P.C.

New Jersey Governor Phil Murphy signed a bill into law in February 2021 that creates a legal framework for the recreational use of cannabis by adults in the state. Voters paved the way for the new law when they approved Public Question 1 by a substantial margin on Election Day in 2020. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) establishes standards for licensing businesses to distribute and sell marijuana products for recreational use. It directs the New Jersey Cannabis Regulatory Commission (CRC) to work out the details through regulations. Medical marijuana has been legal in New Jersey since 2009, but the law was unclear about employee protections until the state legislature amended it in 2019. CREAMMA includes explicit protections against “adverse actions” by employers based on activity that is now legal. If you feel you’ve been treated unfairly by your employer over use of cannabis, please contact a New Jersey employment discrimination lawyer today.

The Compassionate Use Medical Marijuana Act (CUMMA) established a system for the production, distribution, sale, and possession of small amounts of marijuana for medical use under a doctor’s supervision. Section 14 of the law stated that nothing in the law “shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” In early 2020, the New Jersey Supreme Court held that, despite this language, a person using medical marijuana in compliance with CUMMA could assert a claim for disability discrimination under the New Jersey Law Against Discrimination (NJLAD).

The New Jersey Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA) in 2019, after the events that were the subject of the 2020 state supreme court ruling. CUMCA removed the language in § 14 about not requiring employers to accommodate medical cannabis use. It bars employers from discriminating against employees because they are registered medical marijuana users. It does not bar workplace drug testing, but states that employees who test positive for cannabis must have an opportunity to produce a prescription.

March 5, 2021

New Jersey Supreme Court Rules on Arbitration Agreements Between Employers and Employees

by Resnick Law Group, P.C.

Arbitration agreements are a common feature in many employment contracts. Under an arbitration agreement, the employee and employer agree to submit any disputes to the arbitration process, either before or in place of filing a lawsuit. Advocates for employees’ legal rights tend to view arbitration as favoring employers for a variety of reasons. While both federal and state law generally favor enforcing arbitration agreements, New Jersey courts sometimes apply extra scrutiny to make sure they are fair to employees. A decision issued by the New Jersey Supreme Court (NJSC) in the summer of 2020 offers a cautionary example of how courts may follow the strict letter of the federal and state arbitration statutes, even when it might seem unfair to the employee. The Appellate Division had ruled in 2019 that an arbitration agreement was unenforceable under the law of contracts. In a 5-1 ruling, the NJSC reversed that decision.

Both federal and state law provide that arbitration agreements are presumed to be enforceable and irrevocable, unless a party can show “a ground that exists at law or in equity for the revocation of a contract.” 9 U.S.C. § 2, N.J. Rev. Stat. § 2A:23B-6. Even if, as is often the case, an employee has no opportunity to negotiate the specific terms of an arbitration agreement, courts will likely find it to be enforceable as long as there was a “meeting of the minds,” meaning that both parties knowingly agreed to all of the contract’s provisions.

In 2003, the NJSC ruled that an employee can only waive statutory rights, such as the right to a trial in a court of law, through “an explicit, affirmative agreement that unmistakably reflects the employee’s assent.” The court further held in 2014 that an arbitration agreement “must be clear and unambiguous” about an employee’s agreement “to arbitrate disputes rather than have them resolved in a court of law.”
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