New Jersey Employment Lawyer Blog

Articles Posted in Discrimination

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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.

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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.

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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.

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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?

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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.

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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.

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The United States Supreme Court recently ruled that the federal Pregnancy Discrimination Act (“PDA”) can require employers to provide reasonable accommodations to women who are pregnant even if they are not disabled.

The PDA establishes that pregnancy discrimination in the workplace violates federal law. It also includes a provision that requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

Supreme CourtIn the case, Peggy Young worked for United Parcel Service, Inc. (“UPS”) as part-time driver. Although UPS requires its drivers to be able to lift packages up to 75 pounds, during the first 20 weeks of her pregnancy Ms. Young’s doctor advised her not to lift more than 20 pounds. UPS provides accommodations to disabled employees who are unable to lift 75 pounds, as well as to employees who have lost their Department of Transportation certifications. The company refused to provide this accommodation to Ms. Young. Instead, it placed her on an unpaid leave of absence during most of her pregnancy. Ms. Young sued, alleging UPS violated the PDA by failing to accommodate her lifting restrictions.

Both the District Court and the Court of Appeals dismissed Ms. Young’s case, finding it was not relevant that UPS provided the same accommodation to its disabled employees. It reasoned that those employees were not similar enough to Ms. Young to provide a valid comparison. On appeal, the Fourth Circuit affirmed.

However, in Young v. United States, the Supreme Court disagreed. It held that an employee can establish an initial case of a failure to accommodate pregnancy under the PDA by showing (1) she is pregnant; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated other employees who are “similar in their ability or inability to work.” If the employee does so, then the employer has to identify a non-discriminatory reason for failing to accommodate the employee. This cannot simply be the fact that it is more expensive or less convenient to accommodate pregnant women.

Assuming the employer identifies a non-discriminatory reason for failing to accommodate the pregnant worker then the employee can show that the employer’s justification for failing to accommodate her is a pretext (or excuse) for pregnancy discrimination. The Supreme Court indicated that a worker can establish this by showing the employer’s justification for failing to accommodate her is not “sufficiently strong” to justify a “significant burden on pregnant workers” imposed by its policies. For example, an employee show the employer accommodates a significant percentage of non-pregnant employees, but does not accommodate a significant percentage of its pregnant workers.

Based on its ruling, the Supreme Court sent the case back to the Fourth Circuit to determine whether Ms. Young has presented enough evidence to support her claim.

While Young may be a groundbreaking case in many parts of the county, as I previously discussed, both New Jersey (New Jersey Passes Law Prohibiting Pregnancy Discrimination) and New York City (New Rights for Pregnant Employees in NYC) already require even more generous accommodations to women who are pregnant.

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Last week, I discussed how to calculate the potential value of a wrongful termination case at a trial. However, most employment law cases settle rather than going to a trial. Accordingly, it also is important to be able to assess the potential settlement value of your case.

Risk of Loss

Trial CourtroomSince proving discrimination or retaliation requires you to show what is in someone else’s mind, most of these cases are inherently risky. As a result, when trying to determine what might be an acceptable settlement you should factor in the risk that you could lose your case.

For example, if you estimate your damages are approximately $1 million and you have a 50% chance of winning your case, then mathematically your case might be viewed as having a $500,000 settlement value. In contrast, if you have a 70% chance of winning the same case, then it would have a mathematical value of $700,000.

Of course, nobody can predict the actual odds that you will win or lose your case. However, with the advice of an experienced employment lawyer you can make reasonable predictions about whether your case involves a relatively high or low risk of winning or losing at a trial.

Risk Adversity

Most people try to avoid taking unnecessary risks in life, especially when they the stakes are high. For example, although a 50% chance of receiving $1 million theoretically has a mathematical value of $500,000, most people would be willing to accept a guaranteed $450,000 instead of taking this risk. This concept is known as risk adversity.

Someone who is especially risk adverse might be willing to accept $300,000 rather than taking this risk. In contrast, someone who is a gambler might not be willing to accept less than $500,000. Your current personal financial circumstance often impacts how much risk you are willing or able to take.

Costs of Litigation

Another factor you should consider in estimating an appropriate settlement value for your case is what it will cost you to get to (and through) a trial. Depending on your agreement with your lawyer, this may include actual dollar costs such as out-of-pocket costs or legal fees. While most employment discrimination and retaliation cases allow you to can recover these legal fees and costs from your former employer if you win, you will not be able to recover these costs if go to trial and lose your case.

Aside from dollar costs, every employment law case requires a significant commitment of time and energy. As a result, when deciding your settlement position you should consider the dollar and energy you would save.

Emotional Considerations

Aside from dollars, there are emotional factors to consider with respect to settling your case. Most employment law cases are deeply personal. You have to determine whether you will feel better if you are able to resolve your case and move on with your life, or will regret your decision to settle and always wonder if you made a mistake. In litigation, individuals often change how these emotional considerations impact their decisions as time passes.

Practical Considerations

Yet another factor you should be aware of when assessing the settlement value of your case is what your former employer is likely to be willing and able to afford to pay. For example, you should understand that a relatively small and unprofitable company that does not have insurance coverage is unlikely to be able to make the same type settlement that a Fortune 500 company, or a smaller company with insurance coverage, might be able to afford. While that does not necessarily mean you should accept a lower settlement as a result, it is something you should at least understand.

Bottom Line

There is no one right or wrong answer to determine your settlement position. Rather, you should speak to your employment lawyer about these and any other relevant factors to help you assess your position.

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New Jersey has many well-known laws that protect employees. Perhaps the two best know are the New Jersey Law Against Discrimination (“LAD”), an anti-discrimination law, and the Conscientious Employee Protection Act (“CEPA”), a whistleblower law. The state has many other employment laws as well.

One much less known law is the Worker Freedom From Employer Intimidation Act, which went into effect in 2006. It protects employees against certain forms of religious and political intimidation at work. Specifically, it prohibits companies from requiring employees to attend meetings or to participate in communications regarding the employer’s opinion about religious or political issues. The law defines “political matters” to include affiliation with a political party, as well as decisions to join, not join, or participate in “any lawful political, social, or community organization or activity.”

Despite that prohibition, the act allows employers to invite employees to voluntarily attend employer-sponsored meetings and to provide other religious and political communications to their employees as long as make it clear the employees will not be penalized if they refuse to attend the meetings or accept the communications.

The Act includes an exception permitting communications about religious or political matters that the employer is legally required to communicate to the employee. However, this exception applies only to the extent the communication is legally required.

Office PoliticsThe law also permits religious organizations to require employees to attend employer-sponsored meetings or to participate in any communications with the employer to communicate the employer’s religious beliefs, practices or tenets. Similarly, it permits political organizations and political parties to require employees to attend meetings or participate in communications about the employer’s political purposes and beliefs. Further, it permits educational institution to require student or instructors to attend lectures on political or religious matters as long as they are part of the institution’s regular course work.

In addition, the law prohibits retaliation. In particular, it makes it unlawful for an employer to fire, discipline or otherwise penalize, or to threaten to fire, discipline or penalize an employee because he or she reported an actual or suspected violation of the Act.

The Act allows a wide range of relief to employees whose rights have been violated under it. Those remedies include: (1) a restraining order prohibiting continuing violations; (2) reinstatement of the employee to his/her former job or an equivalent one; (3) lost wages and benefits; and (4) reasonable attorneys’ fees and costs. It also permits an award of punitive damages, but caps those damages at three times the employee’s actual damages.

Unfortunately, the Act has only a 90-day statute of limitations. As a result, an employee who wants to pursue a claim under it must act extremely quickly. It also makes it clear it does not limit the right to bring a common law wrongful termination claim which, when applicable, has a two-year state of limitations. Further, individuals who have claims under the Act may also have claims of religious discrimination under the LAD, retaliation under CEPA, or other related claim.

For information about other New Jersey employment laws, please see my previous article which provides an Overview of New Jersey Employment Law Statutes.

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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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