Articles Posted in Employment Discrimination

The coronavirus pandemic continues to hit New Jersey particularly hard, although some good news has appeared in the past few weeks. Two vaccines are gradually becoming available. Certain groups of people will receive the vaccine first, starting with healthcare workers. Eventually, the vaccine will become more widely available. This will raise a question that appears almost every flu season: Can New Jersey employers require their employees to get the COVID vaccine? The answer is, of course, complicated. Employees in some jobs are required by state law to get vaccinated against influenza. Most New Jersey workers are under no legal mandate regarding vaccines, but their employers may be able to require them. Much of this area of law remains unsettled. What little case law exists is based on flu vaccine refusals, so New Jersey’s courts have yet to apply it to COVID-19.

New Jersey Mandatory Vaccination Law

New Jersey has no statewide requirement for employees to receive vaccinations. Employees of any “general or special hospital, nursing home, or home health care agency” licensed by the state must receive an annual flu vaccine. N.J. Rev. Stat. § 26:2H-18.79. This law allows medical exemptions but no religious exemptions. Outside of healthcare, employers have discretion over whether to require vaccinations.

New Jersey Employment Discrimination Law

Two common objections to mandatory vaccines come from people who are unable to receive them for medical reasons and people who object to them on religious grounds.

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Both the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) protect workers against discrimination on the basis of disability. The definition of “disability” has changed over the years to encompass a wide range of conditions. The public’s understanding of addiction has begun to take psychological factors into account. This has led to questions about whether addiction may qualify as a disability under the ADA or the NJLAD. The Equal Employment Opportunity Commission (EEOC) recently reviewed the law surrounding disability discrimination as it relates to opioid use and addiction. If you feel you have been discriminated against for use of opioids, it would be prudent to discuss the matter with a New Jersey employment discrimination attorney to learn what rights you have under state and federal law.

What Do Federal and State Disability Discrimination Laws in New Jersey Say About Opioids?

Opioid addiction is a serious problem in New Jersey and throughout the U.S. The definitions of “disability” in both the ADA and the NJLAD leave open the possibility that some forms of addiction could be considered disabilities. See 42 U.S.C. § 12102(1), N.J. Rev. Stat. § 10:5-5(q). The ADA makes a specific exception, however, for individuals who are “currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a).

Opioids and Disability Discrimination

The EEOC’s guidance document delves into the language of the ADA and the regulations implementing the law. It notes that the document does not have “the force and effect of law,” but rather represents its own interpretation of the ADA. It divides the analysis into three questions, the answers to which could lead to a viable claim for disability discrimination.

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The hiring process is growing increasingly automated, as employers in New Jersey and around the country turn to artificial intelligence (AI) that uses hiring algorithms. This could be a time-saving measure for employers, helping them sort through large numbers of job applications, but it can also potentially result in violation of antidiscrimination laws. While it might seem unlikely that employers would use these algorithms for deliberate discrimination against categories protected by laws like the New Jersey Law Against Discrimination, not all unlawful employment discrimination requires discriminatory intent. AI relies on the information it receives from human users. When an AI bases hiring recommendations on existing data or past hiring patterns, it could end up perpetuating inequities. One question that courts are only beginning to address that could have an impact on New Jersey employment discrimination cases is how to determine liability when a computer engages in discrimination on an employer’s behalf.

Disparate Impact Discrimination

A policy or practice with no discriminatory intent can still violate antidiscrimination laws if it has a disparate impact on members of a protected group when compared to others. The U.S. Supreme Court first recognized disparate impact discrimination in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The employer, located in North Carolina, required applicants for certain jobs to have a high school diploma and to pass an IQ test. The policy had a substantially disparate impact on Black applicants. The court found that the employer’s policy was not “reasonably related” to the jobs in question, and that it therefore violated Title VII of the Civil Rights Act of 1964.

Discrimination in, Discrimination Out

AI algorithms are designed to simulate the functions of the human brain. They cannot “think” on their own — at least not yet. Instead, they process information according to algorithms, all provided by humans. Hiring AIs consider metrics like education and work experience. The most sophisticated hiring tools available right now can even analyze video recordings of job interviews to evaluate candidates.

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The U.S. Supreme Court issued a landmark decision on June 15, 2020 regarding employment discrimination on the basis of sexual orientation and gender identity or gender expression. Many state laws, including the New Jersey Law Against Discrimination include both of these as separate categories in addition to sex or gender. While Title VII of the Civil Rights Act of 1964 does not expressly include either, the Supreme Court’s 6-3 ruling in Bostock v. Clayton County, Georgia holds that Title VII’s prohibition on sex discrimination includes both categories. Justice Gorsuch’s majority opinion applies textual analysis to Title VII to determine that an employer that fires or otherwise discriminates against someone because of their sexual orientation, or because they are transgender, has discriminated against them because of sex. If you feel you have suffered discrimination on the basis of sex, it is recommended that you contact a New Jersey sex discrimination attorney as soon as possible.

Sex Discrimination Under Title VII

The meaning of “sex,” as used in Title VII, has grown over the years through both legislation and court decisions. Sex discrimination under Title VII includes discrimination on the basis of pregnancy thanks to the Pregnancy Discrimination Act of 1978. It has included sexual harassment since the Supreme Court’s 1986 decision in Meritor Savings Bank v. Vinson.

The majority opinion in Bostock identified three decisions that also expanded the meaning of sex discrimination under Title VII:
– In Phillips v. Martin Marietta Corp. (1971), the court found that even though the employer hired more women than men overall, its policy against hiring mothers of young children violated Title VII.
– A requirement that women pay more into a pension fund than men because of longevity statistics constituted sex discrimination, according to the court’s ruling in Los Angeles Dept. of Water and Power v. Manhart (1978).
– The court found that Title VII prohibits sexual harassment between members of the same sex in Oncale v. Sundowner Offshore Services (1998).

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New Jersey has allowed medical marijuana use since 2009, when a bill originally known as the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) became law. As written, the law did not specify how an individual’s use of medical marijuana would affect their employment. If an employer fires an employee because of their medical marijuana prescription, are they discriminating against the employee for the underlying medical condition? Is this unlawful disability discrimination under the New Jersey Law Against Discrimination (NJLAD)?

Two events in the last year have made the situation clearer, at least at the state level. In 2019, the Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA), which contains express protections for employees and replaces CUMMA. This year, the New Jersey Supreme Court ruled that a claim for disability discrimination was possible under CUMMA. If your employment was recently terminated for having a medical marijuana prescription, it is important that you reach out to a New Jersey disability discrimination lawyer as soon as possible to discuss your legal options.

Ambiguity in the Compassionate Use Medical Marijuana Act

Sections 8 and 16 of CUMMA, codified at N.J. Rev. Stat. §§ 24:6I-8 and 24:6I-14, left employers and employees uncertain about the rights of medical marijuana patients. Section 8 stated that the law does not permit anyone to operate a vehicle or perform certain other tasks “while under the influence of marijuana.” Section 16 stated that the statute did not “require…an employer to accommodate the medical use of marijuana in any workplace.” The statute made no mention of employees’ rights.

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Medical marijuana use is legal to varying degrees in more than half of the states in the U.S., including New Jersey. The Compassionate Use Medical Marijuana Act (CUMMA), which was first enacted in 2009, allows individuals to purchase, possess, and use marijuana products under the direction of a physician. Prior to 2019, the text of the statute was rather ambiguous about how it impacted employees’ rights in the workplace. The New Jersey Supreme Court recently ruled on a case that began in 2017, in which the plaintiff alleged that the defendant fired him because of his lawful medical marijuana use, in violation of the New Jersey Law Against Discrimination (LAD). The court affirmed a decision from the Appellate Division that allowed the case to go forward.

Two provisions of CUMMA appear to implicate employees’ rights. Section 8 of the statute states in part that the law does not allow an individual to operate any sort of vehicle or heavy machinery “while under the influence of marijuana.” Section 16 provides that the law does not require “an employer to accommodate the medical use of marijuana in any workplace.”

The LAD prohibits employers from firing an employee or subjecting them to other adverse or disparate treatment because of a disability. The statute defines “disability” to include “physical…mental, psychological or developmental disabilit[ies]” that are “demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.” The definition of “debilitating medical condition” provided by CUMMA overlaps with the LAD’s definition of “disability” in numerous areas.

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New Jersey joined several other states in prohibiting hairstyle discrimination in late 2019 when the Legislature passed the “Create a Respectful and Open Workspace for Natural Hair Act,” also known as the CROWN Act. The new law adds a definition of “race” to the New Jersey Law Against Discrimination (NJLAD) that specifically includes hairstyles historically or traditionally associated with particular racial groups. Many workplaces maintain dress codes or grooming policies that, whether intentional or not, discriminate against Black workers, such as by placing an extra burden on them in terms of how they maintain their hair. New York City issued guidance about race discrimination based on hairstyles in early 2019, and versions of the CROWN Act became law in New York State and California in July. New Jersey race discrimination law thus served as a model for other states to follow.

The NJLAD bars employers from discriminating on the basis of race and multiple other factors. N.J. Rev. Stat. § 10:5-12(a). The statute identifies certain actions as discriminatory, including refusing to hire someone, firing someone or requiring them to retire, or barring them from consideration for employment based on a protected category. Discrimination in the “terms, conditions or privileges of employment” also violates the NJLAD. Id. This may include employment policies or practices that favor or disfavor one group over another, or that impose additional burdens on a group of employees without a reasonable business-related justification. These types of practices can violate laws like the NJLAD even in the absence of discriminatory intent.

New York City’s guidance on hairstyle discrimination, issued in February 2019, offers a useful overview of how it can violate antidiscrimination laws. The document describes various “hair textures [that] are common among people of African descent,” and discusses how people may choose particular hairstyles for “cultural,…personal, financial, medical, religious, or spiritual reasons.” It also describes “protective style[s], intended to maintain hair health.” Discriminatory workplace policies that prohibit many of these hairstyles are often based on “a widespread and fundamentally racist belief that [they] are not suited for formal settings.” Such policies usually derive from “white and European beauty standards.”

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