New Jersey Employment Lawyer Blog

Articles Posted in Discrimination

Published on:

Recently, the New Jersey Appellate Division ruled that an employee who brought a discrimination lawsuit is entitled to obtain evidence about the facts of another employment discrimination lawsuit against one of the individuals he claims discriminated against him. The Court reached this conclusion even though the alleged discrimination in the previous case was based on completely different legally-protected categories.

Discrimination or Fired for Failing to Report Shoplifting?Harold Hansen brought a discrimination lawsuit against his former employer, Rite Aid Corporation, and its Loss Prevention Manager, Craig Mauriello, among others. Rite Aid fired Mr. Hansen in May 2008. Although the company did not give Mr. Hansen any explanation when it fired him, it subsequently claimed it fired him because he violated company policy by failing to report to management that several other store employees had reported to him that they believed the daughter of another employee was shoplifting from the store.

In his lawsuit, Mr. Hansen claims the decision to fire him was based on his age, gender and sexual orientation in violation of the New Jersey Law Against Discrimination (“LAD”).

During his case, Mr. Hansen sought to take the depositions of four former Rite Aid employees who claimed Mr. Mauriello had discriminated against them based on their race, national origin and religion. Mr. Hansen also sought to take the deposition of a retired New York City police captain who apparently was a key witness in that case.

However, the judge did not permit Mr. Hansen to take any of these depositions. He noted that the prior case involved “completely different” allegations, and compared Mr. Hansen’s discovery requests to a “fishing expedition” seeking information that was “incredibly irrelevant” to his case. Another judge subsequently ruled that the four former employees could not testify on behalf of Mr. Hansen and Mr. Hansen could not use documents from their lawsuit at his trial. Ultimately, a jury found Mr. Hansen failed to prove his discrimination claims.

On appeal, Mr. Hansen argued it was improper for the trial judge to deny him discovery about the other discrimination lawsuit. The Appellate Division agreed. In Hansen v. Rite Aid Corp., an unpublished opinion, it ruled that evidence which might show Mr. Mauriello had discriminated against other employees is potentially relevant to whether Rite Aid knew about the prior discrimination and failed to take appropriate action as a result of it, which could be relevant to whether the company has an effective anti-discrimination policy. It also found this evidence could be relevant to Mr. Hansen’s claim for punitive damages.

On a separate issue, the Appellate Division ruled the trial judge improperly prohibited Mr. Hansen from reading portions of Mr. Mauriello’s deposition testimony to the jury. The trial judge made this ruling on the basis that Mr. Mauriello was available to testify in person. However, as the appellate court explained, the Rules of Evidence permit a party to use the deposition of another party at trial whether or not the witness is available to testify in person.

The Appellate Division further explained that Mr. Mauriello at least arguably admitted at his deposition that Rite Aid’s policy did not require Mr. Hansen to report the second-hand information he had about the alleged shoplifting. Accordingly, it recognized a jury could find this admission was relevant to whether Rite Aid actually fired Mr. Hansen for violating its policy, as it claimed, or fired him because of his age, gender or sexual orientation. The appellate court concluded that Mr. Hansen was “clearly prejudiced” by being denied the right to present this evidence to the jury, and therefore ruled that he is entitled to a new trial.

Published on:

Earlier today, New Jersey’s Appellate Division ruled that an employee is entitled to a trial to determine whether her employer fired her because it incorrectly perceived she was unable to perform her job due to an actual or perceived disability, obesity. The case largely turns on whether the employer’s physician relied on an accurate description of the physical requirements of her job.

New Jersey school sued for disability discriminationBarbara Sheridan worked as a custodian for the Egg Harbor Township Board of Education. Egg Harbor was concerned whether Ms. Sheridan could perform her job based on the fact that she was short of breath and her face was flushed after she performed certain more strenuous job duties. The school district also was concerned that Ms. Sheridan was unable to climb ladders, had trouble climbing stairs, and was a risk that she would injure herself or otherwise performing her job duties.

The school district sent Ms. Sheridan for a fitness for duty exam with an independent physician, who concluded she physically was incapable of performing all of her job duties. Relying on those conclusions, the school board fired Ms. Sheridan.

Ms. Sheridan sued. In her lawsuit, she alleges she adequately performed her job duties for more than 8 years, and asserts that Egg Harbor’s decision to fire her constitutes perceived disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

Egg Harbor filed a motion for summary judgment, asking the trial court to dismiss her case. The court granted the motion, finding the physician’s fitness for duty report provided the school board a non-discriminatory reason to fire Ms. Sheridan, and Ms. Sheridan could not show it true motive for firing her related to a discriminatory animus against obese workers.

On appeal, New Jersey’s Appellate Division reversed. In Sheridan v Egg Harbor Township Board of Educ., the court concluded that the school district had a legitimate basis to require Ms. Sheridan to attend the fitness for duty exam. However, it found a factual dispute about the accuracy of the job description that the physician relied upon in concluding Ms. Sheridan was unfit for duty. For example, although the job description indicated that custodians must be able to lift more than 75 pounds for 50 yards, an earlier version of the job description for the same position set the requirement at 50 pounds. The appellate court also noted that Ms. Sheridan’s supervisor testified that custodians need to lift objects weighing 75 pounds only twice per year. The court recognized that a reasonable juror could find the 75 pound requirement “is not a fair or realistic physical expectation to have for a school custodian,” and that the job description the physician relied upon may not have accurately reflected the actual requirements of her job.

The Appellate Division also observed that the fitness for duty exam did not test whether Ms. Sheridan was able to climb ladders, even though that was one of the primary concerns that led Egg Harbor to request the exam. Moreover, it explained that the basis for the district’s belief that Ms. Sheridan could not climb a ladder may have been based on her supervisor’s statement that she “would break the ladder so [she] should stay off [of] it.”

In short, the Appellate Division found there were numerous reasons to question whether Ms. Sheridan’s failure to meet certain aspects of the fitness-for-duty exam “fairly and accurately reflected an inability to perform her daily work tasks capably.” Accordingly, it concluded there are factual disputes that need to be resolved by a jury, and remanded the case for a trial.

Published on:

The Third Circuit Court of Appeals recently recognized that an employee can bring a lawsuit under Title VII against the company where he works, even though he was hired and paid through a staffing firm. Title VII is a federal anti-discrimination law that prohibits employment discrimination based on gender, race, national origin, and religion.

Retail employee experiences race discriminationMatthew Faush was an employee of Labor Ready, a staffing firm. Labor Ready assigned Mr. Faush to work at Tuesday Morning, Inc., a retail business, at one of its stores. His job was to set up display shelves, unload and stock merchandise, remove garbage, and perform other similar tasks. Mr. Faush, who is African-American, claims Tuesday Morning made a racially-motivated accusation that he stole merchandise, subjected him to racial slurs, and fired him because of his race.

Mr. Faush filed a lawsuit against Tuesday Morning, claiming it discriminated against him because of his race in violation of Title VII. The District Court granted summary judgment to Tuesday Morning, finding Mr. Faush was not an employee of the store. Unlike the New Jersey Law Against Discrimination, Title VII protects only employees and not independent contractors.

On appeal, applying a previous United States Supreme Court case, the Third Circuit explained that when determining whether someone is an employee for purposes of Title VII a court should consider factors such as:

  • Whether the business can give additional assignments to the worker;
  • How much discretion the business has over the worker’s hours;
  • The way the worker is paid;
  • Whether the individual’s job is part of the company’s regular business;
  • The skill required;
  • Who provides the tools and equipment;
  • The length of the relationship between the worker and the business;
  • The work location;
  • Whether the business provides the worker employee benefits; and
  • The tax treatment of the hired party.

Under this test, it is possible an individual can be an “employee” of more than one entity, as either “co-employers” or “joint employers.”

Applying this test, in Faush v. Tuesday Morning, Inc., the Third Circuit ruled that a jury could conclude that Mr. Faush is an employee of Tuesday Morning. Among other things, the Court considered evidence that under Labor Ready’s Agreement to Supply Temporary Employees to Tuesday Morning, Tuesday Morning:

  • Was responsible for supervising and training Mr. Faush;
  • Had the right to reject Mr. Faush as its temporary employee for any reason;
  • Was required to provide Mr. Faush any equipment he needed;
  • Paid Labor Ready based on the number of hours Mr. Faush worked, and had to ensure he was paid in accordance with applicable wage and hour laws;
  • Agreed to comply with all applicable federal, state and local employment laws, including Title VII, and to “provide a workplace free from discrimination”; and
  • Referred to Mr. Faush as a “temporary employee,” rather than as an “independent contractor.”

Based on these and other facts, the Third Circuit concluded that a rational jury could find Mr. Faush was Tuesday Morning’s employee. Accordingly, it reversed the ruling granting summary judgment to Tuesday Morning, and remanded the case to the District Court.

The Court recognized its ruling means Mr. Faush and other temporary employees working for Tuesday Morning can be counted to determine the number of employees who work for Tuesday Morning. This is significant, since Title VII applies only to companies that have 15 or more employees. Tuesday Morning apparently only has 15 employees if you count its temporary employees.

Published on:

In my previous article, Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation, I discussed a case which addresses an employee’s right to a reasonable accommodation for a disability. The same case also demonstrates the power of direct evidence of discrimination.

Judge Ruling in Disability Discrimination CaseDirect evidence is evidence that directly reflects the employer’s discriminatory motive. For example, it can include a statement by the employer that it fired the employee for a discriminatory reason.

Ordinarily, at a trial the employee has the ultimate burden to prove that a discriminatory factor such as age, race, gender or disability made a difference in the employer’s decision to fire her. However, if the employee can present direct evidence of discrimination, then the employer has the burden to prove it did not discriminate against her.

As I previously discussed, Bertolotti v. Autozone, Inc. involves Penelope Bertolotti, a Regional Human Resources Manager for AutoZone, Inc. Ms. Bertolotti requested a medical leave for her disability, gastroparesis. As a result of her medical condition Ms. Bertolotti took two weeks’ off in October 2012, returned to work for a week, and then requested an additional month off. Her doctor subsequently extended her return to work date to February 1, 2013.

In the meantime, on December 12, 2012, AutoZone sent Ms. Bertolotti a letter which indicates that her leave of absence was not covered by the Family Medical Leave Act. The same letter stated that AutoZone was replacing her, but would “attempt to place [her] in an available position” when she is ready to return to work.

In his opinion, the judge found this letter is direct evidence of disability discrimination. He explained that, based on the letter “a reasonable jury could find that Defendants’ decision to remove [Ms. Bertolotti] from her position as Regional HR Manager was motivated by [her] inability to return to work because of her medical condition.”

Accordingly, the Court ruled that at a trial Ms. Bertolotti will not have to prove AutoZone fired her because of her disability. Rather, AutoZone will have to prove its decision to replace her was legally justified. More specifically, AutoZone will have to prove Ms. Bertolotti’s disability prevented her from adequately performing her job duties, thereby justifying its decision to fire her.

The United States District Court for the District of New Jersey explained that when a jury decides whether AutoZone reasonable believed Ms. Bertolotti’s disability prevented her from performing her job, the relevant question is what AutoZone knew and expected at the time it decided to remove her from her job, not what it subsequently learned. In other words, AutoZone violated the law unless, when it made the decision to replace her in December 2012, it had a reasonable belief that she would be unable to perform her job duties by February 1, 2013. In making that determination it is irrelevant whether, in hindsight, Ms. Bertolotti actually would have been able to return to work in February, or at any subsequent date, since that could not possibly have been something AutoZone considered when it made the decision to replace her.

Published on:

The New Jersey Appellate Division Court recently considered the standard for discharging an employee based on a “perceived disability,” and in so doing reversed a grant of summary judgment to the defendant. In Grande v. Saint Clare’s Health System, the Court applied the standard established in 1998 in Jansen v. Food Circus Supermarkets, Inc., which provides that in evaluating whether an employee can remain in a position despite having a disability, the standard is “whether the handicapped person can do his or her work without posing a serious threat of injury to the health and safety of himself or herself or other employees.”  This “requires the employer to conclude with a reasonable degree of certainty that the handicap would probably cause such an injury” before it can fire an employee.  According to the Court, in determining whether the employee “poses a materially enhanced risk of serious injury . . . [p]robability, not mere possibility, is key.”

In this case, the plaintiff, Marianne Grande, worked as a nurse for the defendant employer, St. Clare’s Health System, for approximately ten years. During her last three years of employment, she suffered three injuries at work, two injuries to her shoulder and one to her back.  Following her back injury, she took family and medical leave followed by personal leave.  While on leave, the plaintiff’s physician cleared her to return to work full time without any restrictions.  Despite such clearance, the defendant required her to participate in a “functional capacity evaluation test,” to assess her ability to, for example, lift certain objects and move in certain ways.  In her role as a nurse, she worked with stroke victims and sometimes was required to move patients.

Hospital sued for disability discriminationWhen the evaluation was completed, it provided for some restrictions.  At this time, the plaintiff’s doctor allowed her to return to work in accordance with the restrictions set forth in the hospital’s evaluation.  That same day, however, the hospital discharged the plaintiff indicating it could not accommodate her disability given the restrictions set forth in the evaluation. Approximately one month after her discharge, the plaintiff’s doctor cleared her to return to work, again without restrictions.  Notwithstanding such clearance, the hospital declined to rehire her.

In reaching its decision, the Court highlighted a number of facts.  For instance, it considered that the criteria applied in the evaluation differed from the plaintiff’s actual job description. For example, there were different lifting requirements assessed in the evaluation as compared with her job description. The Court also noted that the plaintiff’s doctor cleared her to return to work approximately a month after her discharge.

In reversing the lower court’s grant of summary judgment in this disability discrimination case, the Court focused on a statement in the evaluation that the final decision regarding the plaintiff’s ability to return to work was to be deferred to her treating physician. The Court found that such disclaimer raised a sufficient question as to whether the hospital had a reasonable degree of certainty that the plaintiff could not perform the essential functions of her work as a nurse without posing a serious threat of injury to herself, her co-workers or her patients. The Court held that it was for the jury to consider the value of the evaluation conducted on behalf of the hospital and the opinion of the plaintiff’s physician.

In a dissenting opinion, Justice Ashrafi focused on the fact that the plaintiff had been injured at work several times in a three-year period.  The dissent argued that given the history of the plaintiff’s work-related injuries, the Court should not be permitted to second-guess the hospital’s decision and its concerns about employee and patient safety.

As this was a 2-1 decision, whether there will be further appeal to the New Jersey Supreme Court remains to be seen.

Published on:

A recent decision from the New Jersey Appellate Division holds that the Borgata Casino Hotel & Spa’s did not violate the New Jersey Law Against Discrimination (“LAD”) by requiring certain employees not to gain too much weight.

The Marina District Development Company, LLC, better known as the Borgata Casino Hotel & Spa, has a program called “Borgata Babes.” Under it, the Atlantic City Casino hires attractive men and women to work wearing costumes. The Casino says that being a Borgata Babe requires a “certain appearance to portray a certain image to the public.” It compares the job with being a professional cheerleaders or model.

Casion allegedly discriminates against womenFor instance, the Casino requires female Borgata Babes to have a “natural hourglass shape.” It also prohibits Borgata Babes from increasing their weight by more than 7% over their weight when they were hired, with exceptions for medical reasons and pregnancy. Its policy is to suspend employees who exceed this requirement to give them opportunity to lose weight, and to fire them if they fail to do so.

Twenty-one women sued the Borgata, claiming the Casino engaged in gender discrimination against them in violation of the LAD. They claim the weight policy is a form of illegal gender stereotyping and sexual harassment that violates the LAD. They also argue the Casino disproportionately applied its policy to women.

The lower court found the policy was a permissible “appearance standard,” and not unlawful discrimination. Accordingly, it dismissed the case. The women appealed.

Last month, in Schiavo v. Marina District Development Company, LLC, the Appellate Division recognized that the LAD permits employers to impose reasonable workplace appearance, grooming and dress standards. It concluded that the policy prohibiting weight gains of more than 7% is such a standard. It noted that the Borgata’s policy itself does not discriminate based on gender since it applies to both men and women. The court was careful to make it clear its decision was based largely on the fact that the employer is a casino, noting the “entertainment nature of the casino” is something that “distinguishes it from a restaurant or tavern.”

The Court further explained that it would be unlawful for the Casino to disproportionately apply this policy against women. For example, it would be discriminatory if it rarely reweighed men and did not suspend or fire men who gained significant weight. However, it found no admissible evidence to support such a claim.

In addition, the Court rejected the employees’ gender stereotyping claim. It acknowledged that the Borgata’s costume and physical fitness requirements impose “what many would label an ‘archaic stereotype’ of male and female physiques.” But it explained that such stereotypes are legally actionable only if they are “accompanied by a burden on one sex over the other or are otherwise used to interfere with employment opportunities of the discriminated group.” It found no evidence to support either of these requirements.

However, the appellate court found some of the 21 women had evidence to support a hostile workplace claim based on their gender. This includes:

  • Women who were repeatedly weighed or disciplined for gaining weight even though they had documented medical conditions that caused their weight gain;
  • Women whose supervisors accused them of falsely claiming they were pregnant, supposedly either to avoid being weighed or to avoid being disciplined for gaining weight. In fact, one supervisor allegedly told the Borgata Babes: “Don’t anybody get pregnant. I don’t want to hear anything about anybody’s family or kids”; and
  • Evidence that some of the women complained to their supervisors about sexual harassment by customers and coworkers which the Borgata failed to address.

The Court recognized this harassment was targeted solely at women, and “reflects a pattern of discriminatory comments toward women suffering medical conditions or returning from maternity leave.” It concluded that the evidence could support a finding of harassment because of gender. Accordingly, it reinstated the gender harassment claims.

Published on:

A recent employment law case from the District of New Jersey demonstrates that you might be entitled to time off from work for a disability under the New Jersey Law Against Discrimination (“LAD”) even if you are not protected by the Family & Medical Leave Act (“FMLA”).

Colleen Pizzo worked as a custodian for the Lindenwold Board of Education. Ms. Pizzo suffers from bipolar depression. She took several days off from work for depression after her girlfriend and coworker died in February 2012. A few months later she took approximately 6 weeks off for depression pursuant to the FMLA. She continued to take additional time off due to her depression after she returned from that medical leave.

Depressed businesswoman denied reasonable accommodation for disabilityBy March 2013, Ms. Pizzo had taken 12 weeks of FMLA leave during the previous 12 months. She asked the Board to allow her to use “sick bank,” meaning sick leave donated by her coworkers, so she could take time off for “work-related stress.” The Board ignored her request.

According to Ms. Pizzo, on March 21, 2013 she called out sick. Although she apparently needed this time off due to her depression, she did not say that when she called out. Ms. Pizzo remained out of work, and on March 28, 2013 the Board fired her. It claimed she said she did not know when she was going to return to work and it could not permit an “indefinitely” leave of absence.

Ms. Pizzo sued, claiming the Board fired her in violation of the FMLA and the LAD. Both parties eventually moved for summary judgment, asking the judge to enter a judgment in their favor.

In Pizzo v. Lindenwold Board of Education, the court dismissed Ms. Pizzo’s FMLA claims. It recognized a factual dispute about whether Ms. Pizzo was entitled to an additional 12 weeks of FMLA starting on January 1, 2012. However, it ruled that even if she still had FMLA time left in March 2012, since she did not mention depression or any other serious health condition when she called out sick on March 21, her request was “inadequate to alert [the Board] that she was invoking her FMLA rights.” Accordingly, the court concluded that request for time off was not protected by the FMLA.

The judge also dismissed Ms. Pizzo’s claim that the Board discriminated against her in violation of the LAD by firing her because of her disability, bipolar depression. Among other things, it found no evidence to disprove the Board’s explanation that it fired Ms. Pizzo because she requested an indefinite leave of absence. Although the LAD can require employers to permit employees to take time off from work as a reasonable accommodation for a disability, they are not required to permit indefinite medical leaves.

However, the court refused to dismiss Ms. Pizzo’s claim that the Board violated the LAD by failing to provide a reasonable accommodation for her work-related stress. Specifically, the Board failed to engage in an “interactive process” to discuss what accommodation Ms. Pizzo needed for this disability. In fact, it did not even communicate with her about her request until March 21, the day on which it both denied her request and fired her.

Similarly, the court did not dismiss Ms. Pizzo’s claim that the Board fired her because she requested this accommodation. It explained that firing an employee because she requested an accommodation for a disability would be retaliation in violation of the LAD. It noted that Ms. Pizzo requested this accommodation on March 16, 2012, and the Board denied her request and fired her only 16 days later. The court found that based on this close timing between Ms. Pizzo’s request for an accommodation and the Board’s decision to fire her, especially when combined with the Board’s failure to engage in the interactive process, would permit a jury to conclude the Board retaliated against Ms. Pizzo in violation of the LAD.

Published on:

Last week, the New Jersey Supreme Court permitted criminal charges to proceed against an employee who took documents from her employer to try to prove her employment discrimination and retaliation claims.

business woman copying employer's confidential documentsIvonne Saavedra worked as a clerk for the North Bergen Board of Education. In 2009, she filed a lawsuit which included allegations that the Board had discriminated against her because of her race, ethnicity, national origin and gender, in violation of the New Jersey Law Against Discrimination (“LAD”). She also alleged retaliation in violation of the Conscientious Employee Protection Act (“CEPA”).

In her employment law case, Ms. Saavedra produced copies of documents she took from the Board while she was working for it. This included both originals and photocopies of documents that the Board claims contain “highly confidential student educational and medical records.” According to Ms. Saavedra, she took these documents in an effort to prove her discrimination and retaliation claims. She did so without the Board’s permission.

The Board reported this to the county prosecutor. Eventually, a grand jury indicated Ms. Saavedra for two crimes: official misconduct and theft by unlawful taking of public documents. Her lawyer tried to get these criminal charges dismissed. Among other things, relying on Quinlan v. Curtis-Wright Corp., Ms. Saavedra argued that New Jersey law protects employees who take documents in an effort to support a discrimination lawsuit. I discussed Quinlan in my article: Can You Be Fired For Giving Confidential Company Documents to Your Employment Lawyer?

In December 2013, the Appellate Division denied Ms. Saavedra’s attempt to dismiss the indictment. On June 23, 2015, in State v. Saavedra, the New Jersey Supreme Court affirmed.

The Supreme Court first explained that the allegations against Ms. Saavedra, if true, would support the alleged crimes. It then rejected her arguments that the criminal charges should be dismissed based on the doctrine of fundamental fairness, the criminal statutes were vague as applied to her, prosecuting her under the circumstances would deter other individuals from trying to prove discrimination and retaliation claims, and prosecuting her would violate New Jersey’s public policy in support of preventing discrimination and retaliation. The Court relied heavily on the fact that Ms. Saavedra could have obtained the documents she needed to prove her claims through the discovery process in her civil litigation, instead of engaging in self-help.

However, the Supreme Court indicated that Ms. Saavedra can assert an affirmative defense to the criminal charges against her that she “has a claim of right or other justification based on New Jersey’s policy against employment discrimination, because she removed the documents from her employer’s premises in order to use them to prosecute her civil claim.” In other words, she can try to convince the jury she was justified in taking the documents because she genuinely believed she had the right to take them to try to prove her discrimination and retaliation claims.

The lesson of the Saavedra case is that employees who are considering taking documents from their jobs to help prove a legal claim should do so with caution. While it may be okay to keep copies of documents your employer provided to you, such as your offer letter, employment contract, or performance reviews, it is risky to take documents you are not entitled to keep. This is especially true with respect to the employer’s original documents, and documents that contain private or confidential information. The bottom line is that while although keeping copies of certain documents could help you prove your legal claim, employees should be very careful not to do anything that could subject them to discipline, let alone to criminal prosecution.

For more information about the Saavedra case, please see my previous article: Prosecuted for Trying to Prove Discrimination?

Published on:

The United States Supreme Court recently ruled that an employer cannot refuse to hire a job candidate because she needs a reasonable accommodation for her religious practice even if the prospective employee did not request an accommodation.

The decision was made under Title VII of the Civil Rights Act of 1964, a federal anti-discrimination law. Among other things, Title VII prohibits discrimination based on religion. For example, it prohibits employers from refusing to hire or from firing an employee because of his or her “religious observance and practice.” It also requires employers to provide reasonable accommodations to employees for their religious practices, observances and beliefs.

The case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., involves Samantha Elauf, an individual who applied for a job at Abercrombie & Fitch Stores, Inc. Ms. Elauf is a practicing Muslim who wears a headscarf. After interviewing Ms. Elauf, Abercrombie determined that she was qualified for the job. However, it did not offer her a position because the company’s “Look Policy” that prohibits employees from wearing “caps” because the company considers them to be too informal for its image. Abercrombie made this decision even though it realized Ms. Elauf’s probably wore her headscarf because of a religious belief.

The United States Equal Employment Opportunity Commission (“EEOC”) sued Abercrombie, claiming its decision not to hire Ms. Elauf violated Title VII. The trial court eventually found in favor of Ms. Elauf, granted summary judgment to her and awarded her $20,000 in damages. However, on appeal the Court of Appeals for the Tenth Circuit reversed and instead granted summary judgment to Abercrombie. The Tenth Circuit concluded that an employer is not obligated to provide a reasonable accommodation for an employee’s religion unless it had actual knowledge that the employee needs such an accommodation.

The Supreme Court overturned the Tenth Circuit’s ruling. It explained that Title VII prohibits discrimination that is motivated by an employee’s religion. It concluded that an employer does not necessarily have to be certain about an employee’s religion for its actions to be motivated by her religion. Accordingly, it held that “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” This does not necessarily require that employer knows the job candidate needs an accommodation for her religion, but also includes situations in which the employer correctly suspects or believes the employee needs such an accommodation if the employee’s need for an accommodation is a motivating factor in the employer’s decision not to hire her.

The Supreme Court noted that this is different from the reasonable accommodation requirement under the American’s with Disabilities Act (“ADA”). The ADA requires employers to provide “reasonable accommodations to the known physical or mental limitations” of the employee. In contrast, Title VII does not include an express limitation that the employee’s religious belief be “known” to the employer.

Accordingly, the Supreme Court reversed the Tenth Circuit’s ruling and remanded the case back to the trial court.

Published on:

On April 20, 2015, New York City Mayor Bill DeBlazio signed a new employment law into effect. The new law amends the New York City Human Rights Law (“NYCHRL”) to permit the New York City Commission on Human Rights to hire individuals who will either apply for or inquire about job opportunities to determine whether they experience any discrimination that violates the NYCHLR.

Specifically, for a one year trial period these “testers” will conduct at least 5 investigations at New York City businesses. The testers will work in pairs, making sure they have similar qualifications for the job but a difference between them in one legally protected characteristic such as their “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status.” The New York City Commission on Human Rights will report any actual or perceived discrimination it uncovers during the to its law enforcement bureau.

By March 1, 2017, the Commission is required to prepare a report regarding the information it learns during the investigations, including which protected classes it tested, the number of times there appeared to be discrimination based on each such protected class, and a description of the actual or apparent discrimination uncovered by the investigation.

The first investigation is required to begin no later than October 1, 2015.

Contact Information