New Jersey Employment Lawyer Blog
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A recent age discrimination case from the United States District Court for the District of New Jersey is a helpful reminder that just because your employer has a good excuse for its decision to fire you, it does not necessarily mean the company did not violate the law.

Carol Natale began working for East Coast Salon Services, Inc., in November 2006. At the time she was 59 years old.   A little over five years later, the salon’s owner, Stan Klet, called the store. Ms. Natale answered the telephone by saying “East Coast Salon, how can I help you?” Ms. Klet claimed Ms. Natale violated company policy by failing to give her name when she answered the phone. He also claimed Ms. Natale challenged him when he told her she had violated this policy. In contrast, Ms. Natale says she told Mr. Klet that nobody ever told her to provide her name when she answers the telephone. She also claims she apologized to Mr. Klet during the call and that she did not argue with him.

Beauty Supply Discrimination LawsuitAfter checking with its Human Resources Department, the company fired Ms. Natale. It claims it fired her because she was insubordinate, argumentative and disrespectful during the call with Mr. Klet.

Ms. Natale, who was 66 years old at the time, filed a lawsuit against the salon and Mr. Klet. She alleges they fired her in violation of the Age Discrimination in Employment Act (“ADEA”). The defendants eventually filed a motion for summary judgment, asking the judge to dismiss the case against them.

In Natale v. East Coast Salon Services, Inc., the trial judge denied that motion. He recognized that employers have the right to fire employees because they engage in rude or disrespectful behavior. However, he found enough evidence that a reasonable jury could conclude Ms. Natale’s age was a factor in the salon’s decision to fire her.

In essence, the judge concluded that a jury could find Ms. Natale’s immediate supervisor, Faith Fritz, actually made the decision to fire her before Mr. Klet’s telephone call with her. The evidence to support this includes the fact that Ms. Fritz apparently made discriminatory comments about Ms. Natale’s age. For instance, Ms. Natale claims Ms. Fritz told her she was wearing “old lady pull up pants”; indicated she would “look younger if [her] nails were squared off”; sent Ms. Natale home for wearing “old lady shoes”; described her sneakers as making her look like a “retarded old nurse”; and claimed Ms. Natale was “old enough to be her grandmother.”

The judge explained that even though Ms. Fritz may not have made the ultimate decision to fire Ms. Natale, discriminatory comments by someone who did not make the decision can “be used to build a circumstantial case of discrimination.” He ruled it is up to a jury to determine whether Ms. Fritz’s discriminatory comments support the conclusion that the salon fired Ms. Natale because of her age, or merely were stray remarks.

The judge also identified other evidence that could support an inference of discrimination. For example, he noted Ms. Natale testified that in October 2011 Ms. Fritz took away her Tuesday shifts and instead assigned them to an employee who was 15 years younger than her. He also recognized that Ms. Natale has evidence indicating Ms. Fritz recommended firing her and the salon had hired her replacement before she even received the telephone call from Mr. Klet. In other words, the judge found evidence that the salon’s justification for firing Ms. Natale was a pretext (excuse to cover up) age discrimination. Accordingly, he denied the company’s motion for summary judgment to allow a jury to decide whether the salon discriminated against Ms. Natale in violation of the ADEA.

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A recent unpublished decision from the New Jersey Appellate Division demonstrates that employees can prove their employers retaliated against them for objecting to discrimination without proving the discrimination actually was unlawful.

Debra Lemeshow worked for PSEG Services Corporation. In 2000, the company made her its Manager, Business Management Support, with a salary of $95,000 and a potential 15 percent annual bonus.

In 2001, PSEG hired a company to compare its compensation packages to similar jobs at other companies. It determined the appropriate salary for Ms. Lemeshow’s position was between $65,000 and $70,000 per year.

When Ms. Lemeshow learned about this, she complained that the company had improperly compared her job with entry-level positions that were not comparable to hers. PSEG eventually agreed to set her salary at $100,800, but reduced her yearly bonus potential to 10 percent.

Ms. Lemeshow told her supervisor she still was dissatisfied with her new compensation. She claims her supervisor responded by saying, she made a lot of money for a single woman,” and the company needs to “take care of the men with families.” In response, Ms. Lemeshow told her supervisor she was treating her differently than her male counterparts, indicated she does not make too much money for a woman, and again asked her to increase her compensation.

Older woman fired brings lawsuit under New Jersey Law Against DiscriminationIn 2005 and 2006, Ms. Lemeshow received the highest possible performance rating, “exceptional.” Nonetheless, in 2006 she only received a 4 percent raise. Accordingly, she again complained she was being treated unfairly compared to her male peers.

In 2007, PSEG substantially increased Ms. Lemeshow’s job duties. She complained because the company did not follow its policy that whenever an employee’s responsibilities are increased by 20 percent it has to evaluate whether to rewrite the job description. She also claimed “the only increased jobs are for promoting younger women and hiring men!” and noted that “none of us ‘older women’ are permitted to re-write job descriptions to reflect the new organizational responsibilities.” After this, Ms. Lemeshow’s supervisor gave her a performance rating for 2007 that was two levels below the “exceptional” ratings she received during the two previous years.

Later that year, PSEG claimed Ms. Lemeshow did not have prior approval to spend a total of $3,500 over the previous three years to attend a gala. Ms. Lemeshow claims she had approval to use money from her Department’s budget for the gala tickets, and the company did not discipline a man in her department who did the same thing for years. PSEG subsequently claimed Ms. Lemeshow had been improperly reimbursed for her personal cell phone and home Internet service for four years, at a total cost of $1,859. PSEG then fired her.

Ms. Lemeshow filed a lawsuit alleging PSEG fired her in retaliation for her complaints about gender and age discrimination, in violation of the New Jersey Law Against Discrimination (“LAD”). The trial court dismissed her case, finding insufficient evidence for a jury to find retaliation.

In Lemeshow v. PSEG Services Corp., the Appellate Division reversed. It noted that although Ms. Lemeshow might not have enough evidence to prove PSEG actually discriminated against her based on her gender or age, that is not required to prove retaliation. Rather, Ms. Lemeshow’s complaints that she was underpaid compared to the men in her department, and only men and younger women receive additional responsibility, are enough to show she had a good faith belief she was the victim of unlawful discrimination. As a result, the Court concluded she was protected from retaliation.

The Appellate Division further recognized there is evidence that the company did not discipline other employees who engaged in similar use (or misuse) of company funds. It concluded a jury should determine whether PSEG really fired Ms. Lemeshow because of this, or because she complained about gender and age discrimination. Accordingly, it remanded her case to the lower court for a trial.

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A recent disability discrimination opinion from the District of New Jersey reflects the relatively low burden an employee has to meet to have his case decided by a jury.

Damian Melton, a Type I diabetic, worked as a doorperson for Resorts Casino Hotel in Atlantic City for approximately six years.  Due to his medical condition, Resorts granted Mr. Melton an intermittent leave under the Family & Medical Leave Act (FMLA), and did not require him to work the graveyard shift as a reasonable accommodation for his disability.

Hotel Doorman Disability DiscriminationIn August 2010, Mr. Melton injured his shoulder, necessitating surgery.  When he returned to work a few months later the hotel assigned him to a light duty job as a valet cashier.

Around the same time, the company that owned Resorts went into foreclosure.  Another company, DGMB Casino, LLC, agreed to purchase the hotel.  All of the hotel’s employees received notices from Resorts informing them their employment was being terminated as of December 1, 2010.  They also received notices from DGMB inviting them to apply for jobs with it.

Mr. Melton applied for numerous jobs, including doorperson, but DGMB did not hire him.  Instead, it hired six doorpersons, five of whom previously worked for Resorts and a sixth who had not.

Mr. Melton sued, claiming DGMB failed to hire him in violation of both the FMLA and the New Jersey Law Against Discrimination (“LAD”).  The employer filed a motion for summary judgment, asking the trial judge to dismiss his LAD claim.  It argued Mr. Melton could not prove he was objectively qualified to perform his job, which is a requirement to prove a discrimination claim.  Specifically, it claimed he did not have the physical ability to work as a doorperson.

In analyzing this issue, the judge explained it is necessary to determine the essential job functions of a doorperson.  This has to be decided on a case-by-case basis, considering factors including which job duties the employer considers essential, what is stated in the written job description, how much time employees spend performing each function and the consequences if an employee is unable to perform the function.

Mr. Melton argued he is objectively qualified to perform his job because he was worked for Resorts as a doorperson for six years and received positive reviews from his supervisors and customers.  The Court noted that due to his shoulder injury, Mr. Melton was unable to work as a doorperson when he last worked for Resorts and needed a light duty position.  However, it recognized this was a temporary accommodation while his shoulder healed, and found he presented sufficient evidence to establish he was qualified for the job.

DGMB also argued Mr. Melton was not qualified for the job because he did not have enough flexibility with his work schedule since he cannot work the graveyard shift.  It claimed this was important since there are only six doorpersons who have to cover the job 24 hours per day, seven days per week.  However, Mr. Melton presented evidence that most of the other doorpersons work regular set schedules.  Based on this, the judge ruled there is enough evidence for a jury to find Mr. Melton is qualified for the job.

Finally, the judge found there is enough evidence for a jury to find DGMB did not hire Mr. Melton because of his disability.  The company claimed it did not hire him because he had poor job performance and a negative attitude in the past, and offered some evidence to support these claims.  Nonetheless, the Court relied on the positive reviews Mr. Melton received from his employer and customers.  It found this was enough to allow a jury to question the company’s explanation and to conclude his disability was the real reason DGMB chose not to hire him.  Accordingly, in Melton v. Resorts International Hotel, Inc., the Court denied the company’s motion for summary judgment.

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In recent years, employers have been increasingly requiring their employees to sign arbitration agreements. An arbitration agreement is when you agree to have a private arbitrator, rather than a judge or jury, decide your legal disputes. Arbitration generally is considered less fair to individual employees and more favorable to big businesses. Nonetheless, courts generally enforce arbitration agreements as long as they are clear and unambiguous.

However, a recent ruling by the New Jersey Supreme Court recognizes that to be valid, an arbitration agreement has to make it clear you are waiving your right to pursue your case in court. The case, Atalese v. U.S. Legal Services Group, L.P., was decided in the context of a consumer contract dispute. However, it seems likely the same principle would apply to employment law arbitration agreements.

The arbitration provision in the Atalese case states that “any claim or dispute . . . shall be submitted to binding arbitration upon the request of either party.” It also indicates that an arbitrator will “resolve the dispute” and the “decision of the arbitrator shall be final.”

Arbitration Agreements GavelThe New Jersey Supreme Court explained that arbitration agreements, like other contracts that waive an individual’s constitutional or statutory rights, have to be clear to the average person. The Court concluded that although the provision in question makes it clear the parties agreed to resolve their disputes in arbitration it does not say anything about waiving their right to go to court. It also does not explain what arbitration is or how it is different from a proceeding in court.

Ultimately, the Supreme Court ruled the arbitration provision was unenforceable because it does not contain anything making it clear that the individual was waiving his or her right to pursue a claim in a court of law. The court explained that no “magic words” are necessary to make this clear. However, to be enforceable an arbitration agreement in a consumer contract has to make it clear, one way or another, that the individual is agreeing arbitration will be the exclusive remedy and is giving up the time-honored right to sue.

Applying that principle, the Court found the language in the arbitration agreement did not make it “sufficiently clear to a reasonable consumer” that he/she is waiving his/her right to sue. Accordingly, it found the agreement is not enforceable and the case can proceed in court.

The Supreme Court did not directly address whether the same principle apply to employment law cases. However, it relied on numerous previous employment law cases in support of its ruling. In fact, one of the cases the Court cited, Leodori v. CIGNA Corp., holds that arbitration provisions in employment contracts must “reflect that an employee has agreed clearly and unambiguously to arbitrate the disputed claim.” This makes it seem likely a similar provision in an employment contract would not be enforceable. Accordingly, it is likely courts will not enforce employment arbitration agreements unless they make it clear the employee is waiving his or her right to sue in court.

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In a recent case, a federal judge in the District of New Jersey denied an employer’s motion for summary judgment because the employer failed to meet its very limited burden to provide a legitimate non-discriminatory reason why it failed to promote her.

The employee, Employee Sues Sears for DiscriminationVirginia Forchion, claims Sears Outlet Stores, LLC, failed to promote her to the position of lead sales associate because of her age, gender, and race. She filed a lawsuit under the New Jersey Law Against Discrimination (“LAD”). Sears asked a trial judge to dismiss her case on a motion for summary judgment. The judge denied the motion, finding Sears failed to provide any explanation why it hired Bradley Stonehouse, a younger white male, for the position instead of promoting Ms. Forchion.

To understand why the judge denied Sears’ motion, it is necessary to understand how judges analyze employment discrimination claims. Since proving discrimination case can be difficult, judges apply something called the McDonnell Douglas test. Under that test, the burden shifts back and forth between the employer and the employee.

First, the employee has to establish a basic (or “prima facie”) case of discrimination. This relatively limited requirement is intended to weed out cases that are not consistent with the possibility that the employer discriminated against the employee.

Once the employee establishes a prima facie case of discrimination, the employer has to state a non-discriminatory reason for its action. The employer does not have to prove this reason is true. It merely has to present some evidence that, if true, would support a non-discriminatory reason for its decision. As a result, it is rare that an employer cannot meet this burden.

If the employer presents a legitimate non-discriminatory reason for its decision then the burden shifts back to the employee to prove it is more likely than not that the employer’s decision was discriminatory. Most cases are won or lost at this final stage. But that is not what happened in Ms. Forchion’s case.

Rather, on its motion Sears asked the judge to dismiss Ms. Forchion’s case because she never applied for the promotion. It argued she had to prove she applied for the position as part of her prima facie case.

The judge disagreed. He found Ms. Forchion instead could rely on the fact that Sears hired Mr. Stonehouse for the position without informing anyone in the department about the job opening. The judge also noted that since there was no job description for the position, only a jury can decide whether Ms. Forchion was at least as qualified as Mr. Stonehouse for the job.

The judge also recognized that Ms. Forcion’s age, gender and race are legally protected categories under the LAD. He indicated that she testified she had the most seniority in her department, was familiar with the duties of lead sales associate, and was at least as qualified as anyone else for the job. Based on this evidence he concluded that Ms. Forchion had met her initial burden.

However, the judge concluded that Sears failed to meet its burden to demonstrate a non-discriminatory reason for failing to promote Ms. Forchion. It argued that Ms. Forchion never applied for the job, but never explained why it chose to hire Mr. Stonehouse without even considering promoting Ms. Forchion. Accordingly, in Forchion v. Sears Outlet Stores, LLC, the judge ruled that Sears failed to provide a legitimate non-discriminatory reason for failing to promote Ms. Forchion. It therefore denied Sears’ motion for summary judgment.

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A recent ruling from New Jersey’s Appellate Division upheld a $1.4 million emotional distress damages award to two employees in a race discrimination case.

Brothers Ramon and Jeffrey Cuevas worked for The Wentworth Group. Ramon was the company’s only Hispanic regional vice president. Jeffrey Cuevas was hired as a portfolio manager, and subsequently promoted to executive director.

Ramon claims the company subjected him to a variety of racially-motivated derogatory comments including members of management:

  • Telling him there are no Mexican restaurants nearby so they cannot get burritos or tacos;
  • Claiming he preferred to listen to Mariachi or salsa music;
  • Calling an Hispanic bus boys his twin;
  • Joking he could wash dishes instead of paying for lunch;
  • Saying they wanted to walk with Ramon for safety in Newark because “he’s with his people” and “I’m sure he has a switchblade;” and
  • Claiming he had a “little Taco Bell Chihuahua dog.”

Image of eyeglasses and financial documents at workplace with buJeffrey testified he heard numerous offensive and discriminatory comments, including calling him and his brother “Rico Suave,” the “Suave brothers” the “Latin Lovers” and a “Chihuahua.” He also heard comments about Mexican food and salsa music and dancing that were targeted at him and Ramon because they are Hispanic.

Jeffery eventually complained to the company’s in-house counsel about the harassment. Four days later, Wentworth fired him. Approximately three weeks later, the company fired Ramon.

After a trial, a jury found in favor of both Ramon and Jeffrey and awarded them at total of approximately $2.5 million. The company appealed.

In Cuevas v. Wentworth Group, the Appellate Division upheld the Cuevas’s harassment claims, finding the racist comments occurred frequently enough to create a hostile work environment. It noted there were other witnesses who testified about many of the discriminatory comments.

The court also affirmed the jury’s finding that Wentworth fired the brothers because of their race and in retaliation for Jeffrey’s complaint about the harassment. Among other things, it relied on the fact that the company never documented any job performance problems or warned them about their performance. It explained that although employers are not required to document performance issues, a jury can consider the lack of prior warnings as evidence the company’s real reason for firing them was because of their race. The court found their retaliation claims were further supported by the fact that Wentworth fired Jeffrey only 4 days after he complained about the harassment, and fired Ramon a mere 3 weeks later.

The Appellate division rejected Wentworth’s argument that the damages the jury awarded for emotional distress were unreasonably high. Although neither Ramon nor Jeffrey received any psychotherapy, the court concluded the jury’s awards were “generous” but not so excessive that it could overturn them. It ruled Ramon’s $800,000 emotional distress damages award was supported by his testimony that he was “more lethargic,” “beaten down,” “despondent,” and too embarrassed to talk to his wife, and that getting fired caused friction in his marriage and contributed to him getting divorced a few months later. Likewise, it found Jeffrey’s $600,000 emotional distress damages award was supported by his testimony that the discrimination hurt his confidence, caused him to fall into a depression, left him feeling “tarnished” and unable to trust people, and made him feel he was “almost limping along [in] life” and no longer the same person.

However, the court overturned the $150,000 in economic damages the jury awarded Jeffrey because it was more than twice his actual losses. Similarly, it reversed Ramon’s $782,500 economic damages award because he failed to provide Wentworth copies of his tax returns. The court indicated the company could have used those records to contradict Ramon’s testimony about how much he actually earned after Wentworth fired him.

Finally, the court reversed the punitive damages awards to both brothers, as well as the award of attorneys’ fees to their lawyer, so they can be decided after a new jury redetermines their economic damages.

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Last month, New Jersey passed a new employment law that provides some protection to individuals who have criminal records. Officially named The Opportunity to Compete Act, the law is more commonly referred to as a “ban-the-box” law because it limits when employers can include a box on job applications to indicate whether the job candidate has been convicted of a crime.

The law was passed because it has become extremely common for large companies to conduct criminal background searches before they make hiring decisions. According to the New Jersey Legislature, this impacts tens of millions of adults who have criminal records, even though they can make a valuable contribution to the workforce. The Legislature considers this particularly important since finding employment significantly reduces the likelihood someone will repeat their criminal behavior.

The Act prohibits employers from requiring job candidates to indicate whether they have a criminal record, or from asking questions about a job candidate’s criminal record during the job application process. However, it permits employers to ask limited follow up questions if a job applicant discloses that he or she has a criminal history.

Officer Arresting Young ManThe law, which will not go into effect until March 1, 2015, permits employers to ask an individual about his or her criminal history once they decide the individual is their first choice for a position. It also permits employers to refuse to hire someone based on their criminal record. However, it prohibits employers from considering an arrest or accusation that did not result in a conviction (unless it is still pending) or to consider any criminal record that has been expunged or pardoned (with limited exceptions under federal and state law).

The law also restricts employers from considering older convictions (more than 5 years old for disorderly persons offenses, and generally more than 10 years old for crimes). However, the 10 year period does not apply to specific very serious crimes, including homicide, attempted murder, arson, sex offenses, robbery, kidnapping, human trafficking, weapon possession during certain crimes, burglary, aggravated assault, and terrorism.

If an employer asks an employee about his or her criminal history as permitted by the act, it is required to consider other factors including the nature of the offense; how long ago the offense occurred; the job duties and settings of the job; information about the accuracy of the criminal record; and information about the job candidate’s rehabilitation and good conduct.
With limited exceptions, the law prohibits employers from publishing advertisements which indicate they will not consider job applicants who have been arrested or convicted in the past.

The law includes exceptions to numerous provisions for job openings in law enforcement, corrections, the judiciary, homeland security or emergency management. It also invalidates and supersedes any county or local laws or regulations regarding using criminal background information in the employment context.

The law applies to both employees and independent contractors. However, it applies only to employers with 15 or more employees over a 20 week period. It expressly applies to the state, counties and municipalities, as well as job placement companies and employment agencies.
Unfortunately, violations of the law come with a very limited penalty. Specifically, the maximum penalty for violating the law is $1,000 for a first violation, $5,000 for a second violation, and $10,000 for any subsequent violations. The law does not include any other remedies, and does not permit a private claim against companies that violate it.

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Earlier this month, in Temple-Inland, Inc. v. Kenneth Dee, New Jersey’s Appellate Division ruled that a company could be liable for failing to inform an employee about a change to its commission plan until after the change went into effect. The case also addresses numerous other issues in a complex dispute between the company and its former employee.

Sales people working on electronic tabletKenneth Dee worked as a salesperson for Temple-Inland, Inc. for fourteen years. Temple-Inland paid Mr. Dee a base salary plus commissions. The company eventually changed how it was calculating commissions. It apparently substantially reduced Mr. Dee’s commissions in comparison to his peers because he had been receiving extraordinarily high commissions from his best customer, Church & Dwight.

Mr. Dee complained about his reduced commissions. According to Mr. Dee, the Regional Vice President of Sales and Marketing indicated the company would address this by performing an audit. Mr. Dee further claims that although the audit revealed he was being underpaid, the company did nothing to remedy the situation.

On August 27, 2010, Mr. Dee accepted a job offer with one of Temple-Inland’s competitors, Packaging Company of America (“PCA”). Before he resigned from Temple-Inland, he downloaded price lists and account information for his accounts from a password-protected computer.

While he was still working Temple-Inland, Mr. Dee met with Church & Dwight to solicit its business for PCA. On his last day of work for Temple-Inland, he received an email from Church & Dwight seeking a Request For Proposal (“RFP”), but did not mention it to anyone at Temple-Inland. Temple-Inland ultimately learned about the RFP and submitted a bid.

Temple-Inland filed a lawsuit against Mr. Dee, claiming he breached his fiduciary duty to it and misappropriated its confidential and proprietary information. Mr. Dee filed various counterclaims seeking additional commissions.

The trial court granted an injunction prohibiting Mr. Dee from using the company’s confidential information in the future, but dismissed the rest of Temple-Inland’s case because it did not prove it suffered any actual injury or damages. It also dismissed all of Mr. Dee’s counterclaims. Both parties appealed.

In an unpublished opinion, the Appellate Division concluded the company did not breach Mr. Dee’s employment contract since its commission policy did not require it to adjust Mr. Dee’s commissions after an audit. However, it found evidence to support an equitable estoppel claim. Equitable estoppel is when someone intentionally misleads you into doing something based on an understanding you will receive something in return, when it would be unfair and unjust for the other party not to fulfill those expectations. The court concluded Temple-Inland could have misled Mr. Dee to believe his commissions would be adjusted when it told him it would address the discrepancies to his commissions through its audit. It also found Temple-Inland may have violated the New Jersey Wage Payment Act by failing to tell Mr. Dee in advance that it was reducing his commissions on the Church & Dwight account.

With respect to Temple-Inland’s claim that Mr. Dee violated his duty of loyalty, the court explained that an employee can accept a job with a competitor while he is still employed by his current employer. However, the duty of loyalty prohibits a current employee from acting contrary to his employer’s interest, competing with his employer, or assisting its competitors. The Court agreed with the lower court that although Mr. Dee violated his duty of loyalty, there was no evidence to support a damages claim against him.

Likewise, the court affirmed the dismissal of Temple-Inland’s duty of loyalty claim against Mr. Dee. It found evidence that Mr. Dee intentionally withheld information regarding Dwight & Church’s RFP from his employer, in violation of his duty to it. However, it concluded there was no evidence this caused Temple-Inland any harm.

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New Jersey’s Appellate Division recently ruled that a treating physician can testify about an employee’s disability without submitting an expert report. Normally, a witness who is going to provide an expert opinion is required to submit a formal report explaining his or her opinions prior to the trial.

Patricia Del Vecchio worked as police dispatcher for the Township of Bridgewater for approximately a decade. Over the last five years she held that position, her gastroenterologist, Gary Ciambotti, M.D., wrote fourteen doctors’ notes indicating that due to a variety of gastroenterological conditions, including irritable bowel syndrome, Ms. Del Vecchia should not work the night shift unless it was an emergency.

For three years, Bridgewater did not require Ms. Del Vecchio to work the night shift, but eventually it asked her to transfer to the midnight shift. She indicated she did not want to work the midnight shift because of her medical condition. In response, Bridgewater told her that if she did not accept a transfer to another job it would fire her.

Police Dispatcher Working At ConsoleMs. Del Vecchio accepted a transfer, and Bridgewater assigned her to be a clerk in the Police Department’s records office. Bridgewater fired her approximately 7 months later, claiming she excessive absenteeism. Ms. Del Vecchio sued, claiming Bridgewater fired her instead of providing her a reasonable accommodation for her disability, in violation of the New Jersey Law Against Discrimination (“LAD”).

At the trial, the judge limited Dr. Ciambotti’s testimony because he did not submit an expert report. The judge allowed Dr. Ciambotti to testify about the fact that he treated Ms. Del Vecchio for irritable bowel syndrome, and permitted Ms. Del Vecchio to use his notes to prove she requested an accommodation. However, the judge ruled he could not testify about Ms. Del Vecchio’s medical condition, and instructed the jury it could not use his notes to support Ms. Del Vecchio’s claim that had a disability.

Bridgewater had its own expert, Steven Fiske, M.D., who explained irritable bowel syndrome to the jury. However, Dr. Friske testified that even though he has treated thousands of patients who have that condition, none of them were unable to work a night shift because of it. He also stated it was possible Ms. Del Vecchio was malingering, meaning she might have been using her medical condition as an excuse to avoid being assigned to an undesirable shift.

The jury found against Ms. Del Vecchio, concluding she did not establish she had a disability within the meaning of the LAD. Ms. Del Vecchio asked the judge to grant her a new trial, which he denied. She then appealed, arguing the trial judge improperly limited Dr. Ciambotti’s testimony.

In Del Vecchio v. Township of Bridgewater, the Appellate Division reversed. Relying on two previous New Jersey Supreme Court opinions, it explained that although a treating physician usually is an “expert,” they are not required to provide an expert report to be able to testify about facts relevant to their evaluation and treatment of their patient. Accordingly, it ruled Dr. Ciambotti should have been permitted to testify about Ms. Del Vechhio’s illness, diagnosis, treatment and progress.

The Appellate Division further found it was substantially likely the exclusion of this evidence may have changed the outcome of the trial. In particular, it found that limiting Dr. Ciambotti’s testimony so severely effectively left the jury with nothing to rely upon other than Dr. Friske’s testimony. Accordingly, it ruled that Ms. Del Vechhio is entitled to a new trial.

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A few weeks ago, the United States Equal Opportunity Commission (EEOC) issued new enforcement guidelines regarding the federal Pregnancy Discrimination Act (PDA) and related claims under the Americans with Disabilities Act (ADA).

The PDA prohibits most employers from discriminating against employees based on pregnancy, childbirth or related medical conditions. It also requires them to treat women based on their ability or inability to work, rather than based on pregnancy, childbirth, or related medical conditions. The ADA prohibits employers from discriminating against employees because they have a disability, including a pregnancy-related disability. It also requires employers to provide reasonable accommodations to permit disabled employees to perform the essential functions of their jobs.

Casual pregnant businesswoman smiling at computer at her desk inThe EEOC’s guidelines make it clear employers cannot discriminate against employees based on a current or past pregnancy. It notes employees are more likely to prove discrimination claims based on past pregnancies when the employer takes an adverse action (such as termination or demotion) relatively quickly after the employee gave birth. For instance, there can be a strong inference of pregnancy discrimination when an employer takes a negative action while the employee is still on a maternity leave, or right after she returns from one.

The EEOC further explains that the PDA prohibits employers from discriminating against employees because they intended to get pregnant. Accordingly, employers should not ask job candidates or employees whether they intend to become pregnant. The EEOC considers such questions evidence of discrimination if the employer subsequently takes a negative job action against the individual.

The guidance notes that although it would be impossible for an employer to discriminate against an employee based pregnancy unless it knows the employee is pregnant, a company can learn an employee is pregnant in a variety of ways including from the employee herself, through rumors or office gossip, or because the employee is visibly pregnant.

In addition, the EEOC states that employers cannot act based on assumptions and stereotypes about pregnant women, such as assuming they will have attendance problems or will not return to work after they give birth. Likewise, as long as an employee can perform her job an employer cannot force her to take a leave of absence because she is pregnant. This is true even if the employer believes it is acting in the employee’s best interests.

The EEOC explains that employers have to treat women who are pregnant, have recently given birth, or have a related medical condition the same way as they treat other employees of comparable ability (or inability) to perform their jobs. That applies with respect to providing modified or light duty work, paid or unpaid time off, and temporary reassignments. To the extent a pregnant employee requests something the employer has provided to a disabled employee as a reasonable accommodation, the employer must treat the pregnant employee equally, but it can deny the accommodation if doing so would impose an “undue hardship.”

The guidelines explain it can be unlawful for an employer to discriminate against an employee because she is lactating or breastfeeding since those are pregnancy-related medical conditions specific to women. For instance, an employer must provide the same rights to an employee who needs to lactate as it would provide to a disabled employee. In addition, the Affordable Care Act requires employers to provide hourly employees who are breastfeeding break time and a private place where they can express milk.

The EEOC also indicates that federal law prohibits discrimination against a female employee because she had an abortion, chose not to have an abortion, or is considering having an abortion. Likewise, they indicate federal law prohibits employers from making employment decision based on whether or not a female employee uses contraceptives.

Moreover, the guidelines note that discrimination against an employee because she is a caregiver does not violate the PDA. But as I have previously discussed, the EEOC previously explained when federal law prohibits Discrimination Against Caregivers.

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