New Jersey Employment Lawyer Blog

On July 28, 2010, New Jersey's Appellate Division ruled that a former employee of the Atlantic City Board of Education could proceed with his lawsuit. Even though the decision in Clarke v. Atlantic City Board of Education is not a legally binding precedent, it is noteworthy because it recognizes that a few relatively minor discriminatory actions potentially can be enough to prove a harassment claim.

The case was filed by Melvin Clarke, who had been an Assistant Superintendent for the Board of Education. He has a disability which limits his ability to walk, and as a result uses a power scooter and a cane. In February 2002, he filed a disability discrimination lawsuit against the Board and two of its employees. As part of a settlement of that case, the Board agreed to give Mr. Clarke a raise of $5,000 per year, and guaranteed his annual salary would remain at least $5,000 higher than the other Assistant Superintendents in the School District.

In June 2006, Mr. Clarke sued the Board again, this time alleging both retaliation and disability discrimination. The trial court dismissed his claim, finding he did not allege an "adverse employment action." To win in an employment discrimination case, an employee must show he suffered an adverse employment action, such as being fired or demoted because of his or her age, race, gender, disability, or another legally protected category.

As the Appellate Division explained, an adverse employment action has to be serious enough to alter the employee's compensation, terms, conditions, or privileges of employment, deprived the employee of future job opportunities, or had another significant negative effect on his or her job. Examples include being fired, demoted, suspended, passed over for a promotion, forced to resign, or harassed. Harassment is when a company subjects an employee to many separate but relatively minor actions, each of which might not be actionable on its own, but when combined, make up a pattern of discrimination or retaliation conduct.

The Appellate Division reversed the trial court's decision because it found Mr. Clarke's allegations, if true, could establish a hostile work environment harassment claim. His relevant allegations included the fact that the Board (1) moved his office to the sixth floor of the building and further from a bathroom, even though he has difficulty walking, and did not relocate his office after he was stranded on the sixth floor during a fire alarm; (2) refused to develop a plan to provide reasonable accommodations for his disability; and (3) violated his settlement agreement by failing to keep his salary at least $5,000 more than the other Assistant Superintendents. Since the appellate court found Mr. Clarke's allegations could be enough to prove a harassment claim, it sent his case back to the trial court to give him a chance to prove his case.

The question of whether a particular situation is bad enough to be a legally actionable harassment is very fact specific. It depends on factors such has how frequently the harassment happens, how severe the harassment is, and who is committing the harassment.

Continue reading "New Jersey Court Allows Harassment Claim Based on Relatively Minor Acts" »

In June 2009, I discussed the New Jersey Appellate Division's age discrimination ruling that it is illegal for an employer not to renew an employment contract because the employee is over 70 years old. The New Jersey Supreme Court recently agreed, and affirmed the Appellate Division's decision.

Specifically, in Nini v. Mercer County Community College, New Jersey's highest court ruled that a company's decision not to renew an employment contract is more like firing a current employee than deciding not to hire a job candidate. As a result, the Court concluded that even though the New Jersey Law Against Discrimination (LAD) allows employers to refuse to hire employees because they are over 70 years old, that exception does not apply when a company decides not to renew an employee's contract after he or she turns 70.

In explaining its decision, the New Jersey Supreme Court stated that the purpose of the LAD is to protect New Jersey citizens "from all forms of discrimination in employment and, in particular, to protect our older citizens from being forced out of the workplace based solely on age." It also indicated that the over 70 exception is meant to allow employers to avoid the cost of training new employees who have "limited long-term prospects." However, that does not apply to an employee who already has been working for the company and does not need training.

If you are interested in more information about the facts of Nini, then please read my previous article, New Jersey Law Prohibits Refusal to Renew Contract Because Employee is Over 70 Years Old. If you work in New York or New Jersey, and you have been fired, harassed, or experienced any other discrimination because of your age, then you should consider contacting one of our experienced age discrimination lawyers.

On July 2, 2010, Governor Christopher Christie signed into law an amendment to the New Jersey Unemployment Compensation Act, which makes it more difficult for employees fired for work-related misconduct to receive unemployment benefits. Specifically, the amended law creates a new category of disqualification for "severe misconduct." It also extends the period of disqualification for employees fired for misconduct that was not severe by two weeks, bringing the disqualifiaction up to eight weeks in total. Both changes were originally proposed by Governor Christie but not included in the Senate Bill. The Governor subsequently conditionally vetoed the unemployment insurance Bill unless the Senate accepted his revisions.

The first of these changes is likely to have a substantial impact on employees in New Jersey. Before, employees who were fired from their jobs would be completely disqualified from collecting unemployment benefits only only if they committed a crime connected with the work. Now, a complete disqualification also applies to employees who lost their jobs as a result of:

• repeated violations of an employer's rule or policy;
• repeated lateness or absences after a written warning by the employer;
• falsification of records;
• physical assault or threats;
• misuse of benefits;
• misuse of sick time;
• abuse of leave;
• theft of company property;
• excessive use of drugs or alcohol on work premises;
• theft of time; and
• other malicious and deliberate conduct.

Given this broad definition of "severe misconduct," employees engaging in misconduct at work are risking not only their job security, but also their ability to collect unemployment benefits if they get fired. Employees disqualified for severe misconduct remain ineligible for unemployment benefits until after they have worked in a new job for four weeks. In the current economic climate, this is a very harsh penalty.

It is not uncommon for employers to use misconduct as an excuse to fire an employee for an unlawful reason. If you believe you lost your job because your employer discriminated or retaliated against you, please consider contacting an experienced New Jersey discrimination attorney.

In an article I wrote last May, Employees Working in Other States Can Sue Under New York's Anti-Discrimination Laws, I discussed Hoffman v. Parade Publications. In that age discrimination case, New York's mid-level appellate court ruled that the New York City Human Rights Law (NYCHRL) applies to non-residents of NYC if the discriminatory decision was made in NYC. It also ruled that the New York State Human Rights Law (NYSHRL) applies to non-residents of NYC if the discriminatory employment decision was made in New York State. However, last month New York's highest court, the Court of Appeals, reversed that decision and set a new standard.

The Court of Appeals ruled that for the NYSHRL to apply, the employee bringing the discrimination lawsuit must either be a resident of New York State, or show that the impact of the discrimination was felt within New York State. Likewise, it ruled the NYCHRL applies only if the victim of discrimination is a resident of New York City, or the impact of the discrimination was felt in New York City.

The Court of Appeals did not explain what kind of "impact" is necessary for the NYCHRL or the NYSHRL to apply to a non-resident. Presumably, New York law protects employees who primarily work in New York, no matter where they live. However, the Court of Appeals found Mr. Hoffman, who lived and worked in Georgia, was not protected by the NYSHRL or the NYCHRL even though his boss supervised him, made the decision to fire him, and called to fire him, all from the company's headquarters in New York City. In other words, the court found those facts were not enough to show the discriminatory employment decision had an "impact" on New York.

So what is the practical meaning of this ruling for employees working for companies based in New York, but living in New Jersey? Fortunately, New Jersey residents are protected by the New Jersey Law Against Discrimination (NJLAD), which usually provides equal or greater protection against discrimination than New York State law. However, fewer employees working for New York City companies will be able to take advantage of the even broader protections of the NYCHRL. For example, as I discussed in a previous article, Extended Medical Leave Can Be Reasonable Accommodation Under New York Law, this includes the fact that under the NYCHRL employers are required to provide accommodations to their disabled employees even if the accommodations are not reasonable.

A copy of the Court of Appeal's Decision in Hoffman v. Parade Publications is available here.

Among other things, the Family & Medical Leave Act (FMLA) allows covered employees to take off up to 12 weeks from work per year to care a newborn, newly adopted or placed child, or to care for a son or daughter with a serious health condition. However, the FMLA does not indicate whether someone who provides care for a child, but is not the child's biological or legal parent. Among other situations, this arises in same sex marriage and civil union in which only one person is the child's legal parent or guardian.

To answer this question, on June 22, 2010 the United States Department of Labor (DOL)'s Deputy Administrator issued a formal interpretation of the term "son or daughter" under the FMLA. The DOL indicated that someone is an employee's son or daughter if they provide either financial support or day-to-day care for the child.

The DOL reached this conclusion because the FMLA defines "parent" to include someone who acts "in Loco parentis." Someone acts in Loco parentis if they fill the normal obligations of a parent, but are not the child's biological or adoptive parent. Someone who acts in Loco parentis is entitled to take an FMLA to take care of the child.

The DOL provided an example that an individual who provides day-to-day care for his or her partner's child could be considered the child's parent under the FMLA, even if he or she has no legal or biological relationship to the child. It also indicates that this can be true irrespective of whether the child has a biological parent in their home, or already has both a mother and a father.

Continue reading "Department of Labor Says FMLA Covers Non-Traditional Parents" »

The Timing of the Employer's Decision

In some instances, the timing of an employment decision can help prove it was discriminatory. While this most frequently comes up in retaliation cases, it also arises in some types of employment discrimination cases. For example, if your boss starts treating you worse soon after you announce you are pregnant, or fires you when you try to return from a maternity leave, that might help prove gender and pregnancy discrimination. Similarly, if your employer demotes or fires you for no good reason after you request time off because of a medical condition, that could help support a disability discrimination claim.

Documents and Witnesses

While most evidence of employment discrimination often comes from the victim of the discrimination him or herself, it can be very helpful to have documents and witnesses to support your claim. For example, current or former coworkers might confirm that your boss made discriminatory remarks, or have inside information about the company's real reasons for its actions toward you.

In addition, documents might help prove the company's explanation for firing you was false, or reflect your supervisor's discriminatory attitudes. This can include traditional work-related documents like performance reviews and termination letters. It can also include a variety of other documents, such as emails, pictures, audio recordings, text messages, or even postings on websites like Facebook or MySpace.

For more information, please see my articles How Do I Prove Employment Discrimination?, which discusses proving discrimination based on the employer's discriminatory statements, and evidence the employer's explanation for its actions is false, and Additional Ways to Prove Employment Discrimination, which is about proving discrimination based on the employer's pattern of discrimination, and favoritism of people outside your protected group.

If you have a question about your employment law rights in New York or New Jersey, contact an experienced employment law attorney in your area.

The Employer's Pattern of Discrimination

In addition to the topics discussed in my previous article, How Do I Prove Employment Discrimination? (discriminatory statements of the employer and evidence the employer's explanation is false), you also might be able to help prove discrimination by a pattern of discrimination. In other words, you can support your discrimination claim if you can show that your company tends to treat people of your race, gender, age, or other legally protected category worse than other employees.

For example, if the last three employees the company fired were in their 60's, that could support your age discrimination claim. Or, if the company you worked for had a mass layoff or reduction in force, and a significantly greater percentage of African American or Hispanic employees were laid off than the percentage of African American or Hispanic employees at the company, then that could help prove you were the victim of race discrimination.

The Employer Favored People Outside My Protected Group

Another thing that can help demonstrate discrimination is if your boss favors employees who are outside of your protected group for no good reason. However, it is important to remember that favoritism is not illegal unless it is based on a legally protected category such as race, age, or gender.

For instance, if you are a woman, and your supervisor gives better job assignments or performance ratings to male employees, even though the female employees are just as good (or even better) at the job, that might help prove gender discrimination. Likewise, if your boss favors employees who are of the same race or religion as him, without any job-related reason, that might be evidence of discrimination because of race or religion.

My next article, Even More Ways to Prove Workplace Discrimination, discusses proving discrimination based on the timing of the employer's decision, and through documents and witnesses. If you worked in New York and New Jersey, you should consider contacting an employment lawyer to discuss whether you have enough evidence to prove you were the victim of discrimination.

State and federal employment laws in both New York and New Jersey make it illegal for employers to discriminate against employees because of their age, race, gender, pregnancy, disability, color, national origin, sexual orientation, or veteran/military status. But how do you prove your employer's actions were discriminatory?

The Employer's Discriminatory Statements

If the employee who took a discriminatory action toward you made discriminatory comments or jokes, then that can help show the decision to fire, demote, or take another adverse employment action against you was discriminatory. Similarly, if your boss called you or other employees in your protected group discriminatory names, that could help support a claim of discrimination. The closer in time the discriminatory comments were to the adverse employment decision, and the more related they were to the adverse decision, the better.

For example, if your supervisor called you a dinosaur "old man," or repeatedly commented about your age in the weeks or months before he fired you, that is probably strong evidence of age discrimination. Similarly, if your boss frequently made jokes about your race, color, national origin or religion, that would help prove his decision to demote or fire you was discriminatory.

Evidence the Employer's Explanation is False

Perhaps the most common way to prove discrimination is by showing the company's explanation for its decision to fire, demote, or take another employment action against you is false. Employment discrimination lawyers call this false reason a "pretext" for discrimination. In the right circumstances, evidence of pretext, plus the fact that you are a member of a protected group, can be enough to prove discrimination. However, it is always helpful to have additional evidence to prove your discrimination case.

For instance, if the company claims it fired you because it eliminated your job, but they advertise to replace you a few days later, that could be evidence of discrimination. It also could help you show discrimination if your new boss claimed the company fired you because of your job performance, but your performance reviews have always been excellent, you have never been warned about your job performance, and several of your coworkers with poor performance records were not fired.

Next week's article, Additional Ways to Prove Employment Discrimination, discusses proving discrimination based on the employer's pattern of discrimination, and favoritism toward people outside your protected group. The week after that I will address Even More Ways to Prove Workplace Discrimination, which talks about proving discrimination based on the timing of the employer's decision, and through documents and witnesses.

Earlier this year, President Obama signed a law which requires employers to provide reasonable break time for nursing mothers. This new employment law right is part of the Patient Protection and Affordable Care Act. It amends the Fair Labor Standards Act of 1938 (FLSA), a federal law which requires employers to pay minimum wage to most employees, and overtime pay to most employees who work more than 40 hours per week.

The new law requires companies to give nursing mothers breaks each time the employee needs to express milk. It applies for up to one year after the birth of a child. However, employers are not required to pay employees during these breaks.

Employers also must give nursing mothers a place that is hidden from view and free from intrusion from other employees or the public. The law specifically says that the place cannot be a bathroom.

The law applies to all employers, but companies with fewer than 50 employees are not subject to the requirement if it would be an undue hardship. This means that the break time causes the company significant difficulty or expense, compared to the size, financial resources, nature, or structure of the company's business.

What is a Disparate Impact Case?

A disparate impact case is one in which an employee claims the employer's policy has an unequal negative impact based on an unlawful reason. Unlawful factors include race, national origin, gender, age, pregnancy, and disability, among others.

For example, an employer might use a test to decide which employees it hires or promotes. Even if the employer has no intent to discriminate, the test might disproportionately select fewer employees in a legally protected group. For example, if a significantly lower percentage of African-American or Hispanic job candidates are hired or promoted based on the test results, then the test might be considered to have a disparate impact based on race. A job criteria that has a disparate impact based on an illegal factor violates the law unless the company can prove it has a "business necessity" for using the criteria.

In Lewis v. City of Chicago, the Supreme Court discussed the filing deadline for a disparate impact case. As a starting point, the Court noted that federal law requires employees to file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) within either 300 days after the discrimination occurred. Otherwise, the employee's claim will be dismissed. (Note: in some states the EEOC filing deadline is only 180 days).

Other anti-discrimination laws have different filing deadlines. For example, the New Jersey Law Against Discrimination has a 2 year statute of limitations, and both the New York Human Rights Law and the New York City Human Rights Law have 3 year statutes of limitations.

The Lewis Case

Lewis v. City of Chicago involves the Chicago Fire Department. The Department used a written exam to decide which job candidates it hired. The test undisputedly had a disparate impact against African-American job candidates. Six African-American job applicants filed Charges of Discrimination with the EEOC.

Each of the Charges of Discrimination was filed more than 300 days after Chicago announced how it planned to use the test results. However, Chicago continued to use the test results to hire job candidates for the next six years. At least one of the employees filed a Charge of Discrimination within 300 days after the Department hired a job candidate based on the test results. Accordingly, the trial court found that the Charge of Discrimination was timely.

After a trial, the Court found the test had a disparate impact on the basis of race. It also ruled that the employer did not prove a business necessity for the test. As a result, it ordered the Fire Department to hire 132 African-American employees who had applied for jobs.

On appeal, the Seventh Circuit Court of Appeals reversed. It found the Charge of Discrimination should have been filed within 300 days after the City announced how it planned to use the test results. As a result, it dismissed the case.

But the Supreme Court disagreed, and reinstated the trial judge's ruling. It found there was a continuing violation, and the Charge of Discrimination was filed on time because it was filed within 300 days after the City used the test results to make a hiring decision. As a result, it reversed the Seventh Circuit's decision.

In a recent federal employment law decision, the Third Circuit Court of Appeals ruled that side effects of medication or other medical treatment can constitute an impairment within the meaning of the Americans with Disabilities Act (ADA). The ADA is a federal law which prohibits employers from discriminating against employees because they are disabled.

To be protected by the ADA, an employee must prove he has a disability, as defined by the statute. Usually, an employee proves he is disabled by showing that his disability substantially limits his ability to perform a major life activity. Major life activities include caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

In Sulima v. Tobyhanna Army Depot, the Third Circuit ruled that employees can also prove they are disabled by showing that the effects of their medication or other medical treatment substantially impair a major life activity.

Ed Sulima, the plaintiff in Sulima, is morbidly obese and suffers from sleep apnea. As a result of his disabilities, he took weight loss medication prescribed by his doctor. However, the medicine caused him gastrointestinal difficulties which made it necessary for him to take long and frequent bathroom breaks.

Mr. Sulima's supervisor noticed him leaving his desk frequently, and questioned him after he was away from his workstation for a total of two hours during a single work shift. Mr. Sulima explained his time away from his desk was due to a side effect of his medication. The next day, he provided a doctor's note confirming he needed to use the restroom frequently due to a gastrointestinal disorder.

Six weeks later, Mr. Sulima was informed that he was being transferred to a different work area. He then brought in another doctor's note, which indicated that he had changed medications and no longer needed long breaks.

However, the company still decided to transfer Mr. Sulima, even though there were no other work areas available. Three days later, Mr. Sulima accepted a voluntary layoff. He later filed a lawsuit against his employer, claiming his employer forced him to accept a layoff because he is disabled.

The Third Circuit found that, under the circumstances, Mr. Sulima's morbid obesity and sleep apnea were not disabilities under the ADA. As a result, it had to decide whether he could be considered disabled as a result of the gastrointestinal difficulties caused by his medication.

The Third Circuit ruled that an employee who claims he is disabled as a result of his medication or other medical treatment must prove that:

1. the medication or treatment is required in the "prudent judgment" of his medical profession;


2. there is no available alternative that is equally effective and lacks similarly disabling side effects; and


3. the treatment is not solely required for an impairment resulting from the employee's voluntary choices.

It should be noted that, in Sulima, the Third Circuit interpreted the ADA before it was amended by the ADA Amendments Act of 2008. The ADA Amendments Act only applies to disability discrimination claims based on events that occurred on or after January 1, 2009.

It is likely the Court would have applied the same test in a case brought under the ADA Amendments Act. However, since the amendment significantly broadened the definition of a disability under the ADA, the Court might have reached a different conclusion if Mr. Sulima had been fired on or after January 1, 2009.

Many companies offer severance pay to certain employees who they have laid off, downsized, or fired. For example, some companies pay severance to employees who lose their jobs as part of a mass layoff or other reductions in force. Severance is often based on one or two weeks of pay for each year you worked for the company, but the way severance pay is calculated can vary greatly from one job to the next.

Severance pay can help soften the blow of losing your job. However, most severance agreements require you to sign away important legal rights. As a result, it is very important to make sure you understand all of the terms of your severance offer before you agree to it.

In New York and New Jersey, there is no legal obligation for companies to pay any severance to employees. However, if a company has a severance policy, it must follow it. Similarly, if you have entered into an employment contract which entitles you to severance, then your employer must comply with your contract.

What Should I Look Out For Before I Sign a Severance Agreement?

There are many things you should understand before you decide whether to accept a severance offer. Below are some of the most common questions employees have about their severance agreements.

Is my employer offering me enough severance pay?

Perhaps the most common question employees have about a severance offer is whether the employer has offered them "enough" severance. There is usually no simple yes or no answer to that question. However, some important factors to consider include:

What am I entitled to receive if I reject my severance offer?

In some situations, if you reject your severance offer, you will receive nothing. In others, you might be entitled to receive some severance pay even if you do not sign the agreement. Similarly, some companies have policies that entitle you to be paid for your unused vacation, sick, or holday time even if you turn down a severance offer. Others do not.

Has the company offered me everything I am entitled to receive under its severance policy?

In general, a company is required to follow its written severance policy. Under certain circumstances, a company can establish a severance policy by having an established practice of paying severance to its employees who meet certain conditions. It is usually a good idea to make sure your company has included everything you are entitled to receive under its policy or past practice.

Do I have a legal claim against my employer?

Most severance agreements require you to give up all of your legal claims against your former employer before you can receive severance. For example, if you were fired because of your age, race, national origin, gender, disability, religion, or some other unlawful reason, then an employment lawyer may be able to negotiate a better severance package to settle your legal claim. If you sign a severance agreement, you might be waiving your right to sue for discrimination, retaliation, harassment, breach of contract, or any other claims you may have against your former employer.

Is the amount of severance I have been offered reasonable or fair?

Frequently, the amount of severance you have been offered seems unfair or unreasonable, especially considering how long you worked for the company, and how much you have contributed to it. Similarly, your severance offer might not seem fair compared to what your coworkers or peers have been paid in the past.

Unfortunately, companies are not required to be fair or reasonable. If they were, you probably would not have been fired in the first place. However, if your company has not made a fair severance offer, it might be possible for an experienced employment lawyer to negotiate a better severance offer for you.

What rights am I giving up if I accept my severance offer?

Every severance agreement is different, but most require you to waive all of your legal claims against your employer. As a result, it is usually a good idea to talk to an employment law attorney before you decide whether to accept your severance offer. That is one of the reasons why severance agreements usually recommend you consult with a lawyer before you sign it.

Severance agreements often require you to give up other important legal rights. For example, they might require you to agree not to compete with your former employer, or not to solicit your former customers for a period of time. If your severance agreement contains a non-compete or a non-solicitation provision, then you should consider how that provision might effect your ability to find another job, or open a new business, before you decide whether to accept the severance offer.

You should make sure you understand and agree to all of the provisions in your severance offer before you sign it. This is yet another reason why it is usually a good idea to speak with an employment lawyer before you sign a severance agreement.

Many employment law cases involve employees who are fired in violation of their legal rights. However, companies are often too smart to fire an employee for an illegal reason, and instead try to force them to quit.

Courts undersand this reality, and have a name for it: a "constructive discharge." A constructive discharge is when, instead of firing an employee, a company makes her job so miserable that she is forced to quit.

The Third Circuit recently discussed how an employee can prove a constructive discharge in Colwell v. Rite Aid Corporation. In that case, Ms. Colwell claimed Rite Aid forced her to resign because of her disability, in violation of the Americans with Disabilities Act (ADA), and because of her age, in violation of the Age Discrimination in Employment Act (ADEA). The facts of Colwell are explained in a previous article which discusses a different legal issue -- that employers can be required to change an employee's work shift to accommodate the employee's disability.

As the Third Circuit explains in Colwell, to prove a constructive discharge an employee must show that the conditions at work were so unpleasant or difficult that a reasonable person would have felt compelled to resign. It then lists relevant factors to determine whether an employee has proved that she suffered a constructive discharge. Those factors include whether the employer:

1. threatened to fire the employee, or suggested she should resign or retire;


2. demoted the employee;


3. reduced the employee's salary or benefits;


4. transferred the employee to a less desirable position;


5. changed the employee's job responsibilities; or


6. gave the employee an unsatisfactory job evaluations.

The Third Circuit found that Ms. Colwell could not prove any of those factors. Rather, she claimed Rite Aid had isolated her from other employees, called her "slow," and would not allow her to work on the store floor like other employees. The Third Circuit found those facts did not make Ms. Colwell's workplace so unbearable that a reasonable person would have felt compelled to resign. As a result, it dismissed her constructive discharge claim.

It is important to understand that not every constructive discharge is legally actionable. Rather, an employee has to prove the constructive discharge was because of an illegal reason. For example, a constructive discharge could be actionable if a company forces an employee to resign because of her gender, age, race, pregnancy, or religion, or in retaliation for the employee doing something that is legally protected.

Constructive discharge cases can be challenging to prove because it can be difficult to prove that any reasonable person would have felt they had no choice other than to resign. However, employees whose cases do not meet the constructive discharge standard often have hostile work environment harassment cases. For example, although the Third Circuit found that Ms. Colwell could not prove she was constructively discharge, it might have ruled differently if she had instead claimed that Rite Aid harassed her because of her disability and her age.

On April 8, 2010, in the case of Colwell v. Rite Aid Corporation, the United States Court of Appeals for the Third Circuit ruled that employers can be required to change an employee's work shift to accommodate the employee's disability. The Third Circuit is the federal appellate court that covers several states, including New Jersey.

The Facts of Colwell v. Rite Aid Corporation

Jeanette Colwell worked as a cashier at a Rite Aid store. On some days she worked the day shift (9 a.m. to 2 p.m.), and on other days she worked the night shift (5 p.m. to 9 p.m.).

In the summer of 2005, Ms. Colwell was diagnosed with retinal vein occlusion and glaucoma in her left eye. She eventually went blind in her left eye.

Although Ms. Colwell was able to do her job, her disability made it difficult for her to drive at night, and there was no public transportation available after 6 p.m. In September 2005, she told her supervisor, Susan Chapman, that her partial blindness made it dangerous for her to drive to work at night. Ms. Chapman refused to change her shift, claiming it would not be fair to her coworkers.

In late September or early October 2005, Ms. Colwell gave Ms. Chapman a doctor's note saying she should not drive at night. Ms. Chapman still refused to allow Ms. Colwell to replace her night shifts with day shifts.

With rides from her family, Ms. Colwell was able to work her night shifts. However, she told Ms. Chapman she could not depend on other people for rides all the time. Working night shifts was also a hardship for Ms. Colwell's family. Nonetheless, Ms. Chapman continued to schedule her for both day and night shifts.

In October 2005, Ms. Colwell spoke to her union representative, Ken Karasek, about her need to change her shifts. Mr. Karasek was unable to convince Ms. Chapman to switch Ms. Colwell's night shifts for day shifts. However, he scheduled a meeting between himself, Ms. Colwell, and Ms. Chapman to discuss the issue further. Mr. Karasek did not to show up to the meeting. Although Mr. Karasek offered to reschedule the meeting, Ms. Colwell was fed up, and submitted a resignation letter on October 12, 2005.

Ms. Colwell then sued, claiming disability discrimination in violation of the Americans with Disabilities Act (ADA). Specifically, she alleged that Rite Aid failed to provide her a reasonable accommodation for her disability in violation of the ADA. She also claimed Rite Aid "constructively discharged" her in violation of both the ADA and the ADEA.

Failure to Accommodate Disability

The Third Circuit found that Ms. Colwell's disability discrimination claim should be decided by a jury. An employer discriminates against an employee in violation of the ADA if it fails to reasonably accommodate an employee's known physical or mental limitations, unless the company can prove that providing the necessary accommodation would impose an undue hardship on its business.

Depending on the circumstances, an employer might be required to make the workplace accessible to disabled employees as a reasonable accommodation. Other examples of reasonable accommodations can include restructuring a disabled employee's job, providing her a part-time or modified work schedules, reassigning her to a vacant job, or obtaining different equipment or change existing equipment.

The Court further explained that the ADA requires employers to engage in an "interactive process" with disabled employees. The purpose of this interactive process is to decide whether the company can provide a reasonable accommodation to allow the disabled employee to perform her job.

An employer that fails to provide a reasonable accommodation to a disabled employee violates the ADA if:

1. the employer knew about her disability;


2. the employee requested an accommodation or assistance for her disability;


3. the employer did not make a good faith effort to help the employee to seek an accommodation; and


4. the company could have provided the employee a reasonable accommodation if it had acted in good faith.

When an employee requests a reasonable accommodation she does not need to use any "magic words." Rather, she just has to make it clear she needs assistance for her disability. In other words, if the employer has enough information to know the employee has a disability and needs an accommodation, then it needs to ask the employee how it can help her. At that point, both the employer and the employee must work together to search for an appropriate reasonable accommodation.

Applying this law, the Third Circuit ruled that the ADA can require a company to accommodate an employee's disability which limits her ability to get to work. That includes allowing an employee to change shifts to accommodate her disability if doing so is reasonable under the circumstances.

In the end, the Third Circuit found that, if a jury believes Ms. Colwell version of the facts, then it could find that Rite Aid violated the ADA. Specifically, a jury can find that as soon as Ms. Colwell asked Ms. Chapman to change her schedule because her disability prevented her from driving at nite, Rite Aid should have talked to her about how it could accommodate her disability. As a result, the Court sent the case back to the trial court so a jury can decide whether Rite Aid discriminated against Ms. Colwell in violation of the ADA.

Today, a new employment law, the New Jersey "Emergency Responders Employment Protection Act," goes into effect. The new law makes it illegal for employers to fire or suspend an employee who fails to report for work because (1) the employee is actively engaged in responding to an emergency alarm, or (2) the employee is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of New Jersey. The law defines volunteer emergency responder as members of volunteer fire companies, first aid squads, rescue squads, ambulance squads, and county or municipal Office of Emergency Management, whose official duties include responding to fires or other emergency calls.

A volunteer emergency responder must meet two additional requirements to be protected by this law:

(1) at least one hour before they are scheduled for work, they must provide notice to their employers that they are providing emergency services in response to an emergency alarm or a state of emergency; and

(2) when they return to work, they must provide their employers a copy of the incident report and a certification from the incident commander or official in charge. The certification must confirm that the volunteer emergency responder was actively engaged in, and necessary for, providing emergency services. The certification also must indicate the date and time at which the volunteer emergency responder was relieved from emergency duty.

The new law allows volunteer emergency responders to use any available vacation or sick days to get paid for any time they miss from work while they are serving as volunteer emergency responders. Otherwise, it does not require employers to pay emergency responders for any time they miss from work.

The law does not apply to any employee who is deemed an essential employee under a contract or another law.

These new employment rights are in additional to numerous other protections that firefighters, paramedics, and other emergency service employees working in New Jersey already have. For example, they are protected from retaliation by the First Amendment, the Conscientious Employee Protection Act, and the New Jersey Civil Rights Act. They are also protected from discrimination and harassment because of age, gender, disability, race, national origin, veteran status, religion, pregnancy and sexual orientation, among other legally protected categories, under the New Jersey Law Against Discrimination.