New Jersey Employment Lawyer Blog

Articles Posted in Discrimination

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While minorities are most frequently the victims of discrimination, it is well-established that reverse discrimination also violates the New Jersey Law Against Discrimination (LAD). For example, it is unlawful for a company to discriminate against an employee because he is male, white, or under 40 years old. However, since reverse discrimination is less common, New Jersey courts have established a higher standard for employees who bring reverse discrimination or harassment claims by requiring them to present evidence that they work for the unusual employer that discriminates against the majority.

WarehouseA recent decision out of the United States District Court for the District of New Jersey denied an employer’s motion to dismiss a claim of reverse race discrimination, finding the employee had enough evidence to meet this heightened standard. The court explained there are two categories of evidence that employees can use to help meet this standard: (1) evidence that the specific employer has a reason to want to discriminate against the majority, and (2) evidence there is “something ‘fishy’” about the facts of the case that suggests the employer is discriminating.

The case was brought by Frank McQuillan, who worked for Petco Animal Supplies Stores, Inc., as an order picker at a distribution center in Monroe, New Jersey. Mr. McQuillan claims Petco harassed him because he is Caucasian.

Mr. McQuillan was the only Caucasian employee who worked on the floor of the distribution center. He alleges (1) his supervisors and most of his coworkers were Hispanic; (2) signs were posted in the workplace in Spanish without English translations; (4) his coworkers constantly referred to him by the terms “gringo” and “maricon,” which are derogatory terms for foreigners and homosexuals, respectively; (3) a manager praised Mr. McQuillan’s work by saying it was “not bad for a white boy;” and (4) the company’s management did not take any actions to stop the harassment. He also claims the company caused him to have lower productivity than his coworkers by not giving him a headset that would have made it easier to perform one aspect of his job even though it provided them to non-Caucasian employees who were hired after him, and by assigning him to lift heavier pallets than his non-Caucasian peers. The court found these facts, if proven, could meet the heightened standard to prove reverse discrimination because they could support an inference that Petco is the unusual employer that discriminates against employees because they are white.

The court also found that Mr. McQuillan’s allegations are sufficient to support a harassment claim. To be legally actionable, harassment has to be severe or pervasive enough to create a hostile work environment. The court noted that even though each individual act of harassment Mr. McQuillan experience was not severe enough to be actionable on its own, when considered together they could create a hostile work environment and therefore could be legally actionable. Accordingly, in McQuillan v. Petco Animal Supplies Stores, Inc. the court denied Petco’s motion to dismiss Mr. McQuillan’s harassment claim, thereby providing him an opportunity to try to prove his case.

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Last last year, I discussed a federal case, Wang v. Phoenix Satellite TV US, Inc., which concludes that New York Law Does Not Protect Unpaid Interns From Sexual Harassment.  While that still may be true in the rest of New York State, New York City recently amended its anti-discrimination law to make it clear that both paid and unpaid interns are protected by the New York City Human Rights Law (NYCHRL).

Manager with employee working in officeSpecifically, on April 15, 2014, Mayor Bill de Blasio signed into law an amendment to the New York City administrative code which will protect interns in the same way the code currently protects employees.  The law goes into effect sixty days after it was signed.  As a result, starting on June 16, 2014, New York City law will protect interns who work in Manhattan, Brooklyn, the Bronx, Queens and Staten Island from discrimination based on their actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship, or status as a victim of domestic violence, a sex offense or stalking.  Likewise, New York City law will prohibit employers from harassing interns based on any of those categories, including prohibiting sexually harassment.  It also will prohibit employers from retaliating against interns because they complain about employment discrimination or harassment in the workplace.

The new law defines “intern” to include anyone who (1) receives training or supplements the training they are receiving in an educational environment and (2) receives work experience for the benefit of an employer, and (3) does so under the close supervision of an employer’s staff.  It includes such individuals irrespective of whether he or she is paid or unpaid.  It is unclear whether this may leave a gap of individuals who do not fit the administrative code’s definition of either “employee” or “intern,” such as individuals who receive the required training or work experience, but not both.  However, the alternative potentially would have covered students who receive training for universities and other educational institutions, a group which the New York City Council apparently did not intend to protect.

In its report supporting the amendment, the New York City Council’s Committee on Civil Rights noted that 69% of companies with at least 100 employees had internships in 2012, and that 63% of college graduates in 2012 had participated in at least one internship.  It further recognized that since interns tend to be relatively young, inexperienced and either unpaid or under paid, they are particularly vulnerable in the workplace.  It therefore was concerned that the Wang case concluded they are not protected by the NYCHRL, and wanted to amend the law so it unquestionably protects them in the same way as any other employee.

Whether the rest of New York State follows suit and protects interns from discrimination, harassment and retaliation is yet to be seen.  Until then, at least New York City will provide that protection.

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The Americans with Disabilities Act (ADA) is a federal law that prohibits employers from discriminating against employees because they are disabled.  It defines a “disability” as a physical or psychological impairment that substantially limits a major life activity.  As a result, not every impairment is a disability.  In contrast, the New Jersey Law Against Discrimination (LAD), the New York Human Rights Law (NYHRL) and the New York City Human Rights Law (NYCHRL) all have significantly broader definitions of the term “disability” including relatively minor mental and physical impairments.

in officeLate last month, the Second Circuit Court of Appeals recognized that an impairment that prohibits an employee for sitting for too long can be a disability even under the ADA.  The employee, Carmen Parada, worked for Banco Industrial de Venezuela, C.A.  Approximately six months after she started working for the bank, Ms. Parada fell and hurt her back.  As a result, she no longer is able to sit for a prolonged period.  According to one of her medical reports, she is able to sit for only 15 minutes before she has to stand.

Ms. Parada asked the bank for an ergonomic chair which she believed would have allowed her to perform her job.  The bank did not respond to her requests so she asked again, this time offering to pay for the chair herself.  When she still did not receive any response she told the bank she could not continue to perform her job without a new chair.  When the bank’s Operations Manager finally told Ms. Parada he would discuss her request when he returned from a business trip she complained to the Compliance Officer and requested a leave of absence.  Ultimately, the bank fired Ms. Parada, claiming she failed to provide sufficient documentation to prove she was disabled and needed a medical leave, and declaring it considered her to have abandoned her job. 

Ms. Parada sued, claiming the bank committed disability discrimination in violation of the ADA, the NYHRL and the NYCHRL.  However, the District Court dismissed her ADA claim, ruling she was not disabled under it based on an earlier case, Colwell v. Suffolk County Police Department.  That case found a police officer who was unable to sit or stand for “too long” was not disabled for purposes of the ADA.

On appeal, the Second Circuit reversed.  It distinguished Colwell by explaining the employee in that case was too vague about his physical limitations.  It ruled that employees do not have to prove they are completely unable to sit to establish they are disabled with respect to the major life activity of sitting.  Rather, the relevant question is whether the employee is substantially impaired in his or her ability to sit in comparison to the average person.

The court further explained that the ADA requires employers and courts to make that determination on a case-by-case basis.  As a result, it would be improper to set a bright-line rule that only employees who are unable to sit at all are substantially impaired with respect to sitting.  In doing so it recognized that, under the right circumstances, even an employee who merely cannot sit for an extended period time could be disabled under the ADA.

Applying that law, in Parada v. Banco Industrial de Venezuela, C.A., the Second Circuit reversed the District Court’s order dismissing the case.  It instructed the lower court to analyze Ms. Parada’s impairments to determine whether her back injury meets the ADA’s definition of a disability.

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Yesterday, Governor Christie signed a law that prohibits pregnancy discrimination in New Jersey. The Act, which is an amendment to the New Jersey Law Against Discrimination (“LAD”), adds pregnancy to the list of legally protected categories. Importantly, it defines “pregnancy” broadly to include not only pregnancy itself but also childbirth, medical conditions related to pregnancy or childbirth, and recovery from childbirth.

Thumbnail image for Thumbnail image for Thumbnail image for New Jersey Passes Law Prohibiting Pregnancy Discrimination.jpgThe new law is expressly premised on the fact that “pregnant women are vulnerable to discrimination in the workplace in New Jersey.” It notes that “women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.” Its goal is to eliminate those forms of discrimination from the workplace.

In the past, many court opinions have found pregnancy discrimination to be a form of unlawful gender discrimination. However, not every court has agreed, leaving some uncertainty in the law. This new law removes any doubt that it is unlawful for an employer to treat a woman worse because of her pregnancy or childbirth, and makes it clear that employers cannot treat pregnant women less favorably than their similarly situated coworkers.

This amendment to the LAD also requires employers to provide reasonable accommodations to pregnant employees based on the advice of their physician, irrespective of whether the employee is disabled. It lists examples of potential accommodations as including “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.” It also makes it clear that companies must offer their pregnant employees at least as much paid and unpaid time off as it provides to comparable employees who are not pregnant.

However, the law makes it clear that employers do not have to provide an accommodation if it can show it would impose an undue hardship on its business. It lists factors to determine whether a particular accommodation would impose an undue hardship as including (1) the overall size of the employer’s business including the number of employees, the number and type of facilities, and the size of budget; (2) the nature of the employer’s operations, including the composition and structure of its workforce; (3) the nature and cost of the accommodation; and (4) the extent to which the company would need to waive an essential job requirement to provide the accommodation. This final consideration seems to imply that, at least under certain circumstances an employer might be required to waive an essential job requirement to accommodate a pregnant employee. If so, this would be significant since employers are not required to waive essential job functions, even temporarily, when providing reasonable accommodations for an employee’s disability or religious belief.

Since the LAD already included a broad anti-retaliation provision, it now prohibits employers from retaliating against employees who complain about pregnancy discrimination in the workplace. In addition, it includes a new provision forbidding employers for penalizing an employee for requesting or using an accommodation for a pregnancy-related condition.

The amendment also includes a provision that makes it unlawful for individuals and companies to refuse to enter into or renew contracts or otherwise do business with someone because she is pregnant. As a result, in addition to protecting employees it also protects independent contractors.
The new law and all of its requirements went into effect on January 16, 2014. You can read the full text online.

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Age discrimination occurs frequently but often is subtle. You may be certain you were fired because of your age, but not have any direct proof or “smoking gun” evidence. Fortunately, that does not necessarily mean you cannot prove your claim.

Employees who want to prove they were fired because of their age frequently try to show their employers replaced them with someone significantly younger. However, as a recent case demonstrates, this is not difficult to do and is not necessarily required.

Marion Cohen worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) as an associate professor of anatomy and cell biology and injury sciences pursuant to a series of one, two and three-year employment contracts. In late 2008 or early 2009 UMDNJ informed her it was not going to renew her contract, supposedly due to budget cuts. At the time, Ms. Cohen was 69 years old.

Ms. Cohen subsequently sued UMDNJ for age discrimination under the New Jersey Law Against Discrimination (LAD). However, the trial judge dismissed her case on a motion for summary judgment, finding she did not have sufficient evidence to prove UMDNJ either sought to or in fact replaced her with someone younger, and had no evidence that her employer disproportionately terminated older employees. Ms. Cohen appealed.

In Cohen v. UMDNJ the Appellate Division reversed the trial court’s ruling. As the court explained, an employee does not necessarily need to show a significant difference in age to support a finding of discrimination. It quoted Bergen Commercial Bank v. Sisler, a 1999 New Jersey Supreme Court opinion which recognizes it is unusual for a company to replace a sixty-year-old employee with someone in his or her twenties. Rather, “the sixty-year-old will be replaced by a fifty-five-year-old, who, in turn, is succeeded by a person in the forties, who also will be replaced by a younger person.”

The Appellate Court found evidence that Ms. Cohen’s former job duties were redistributed to a number of coworkers who ranged between seven and twenty-two years younger than Ms. Cohen. It found this was enough to support an inference of age discrimination. The appellate court also noted additional evidence suggesting UMDNJ’s explanation for it decision not to renew her contract, rather than terminating one of her replacements, was a pretext (or excuse to cover up) for age discrimination.

The Appellate Division also noted it is not always necessary to compare the age of the employee bringing a discrimination lawsuit to the age of her replacement. For example, other factors supporting an inference of age discrimination can include discriminatory actions or comments by someone involved in the termination decision (or another adverse employment action at issue in the case), favoritism toward younger employees, or a pattern of recommending the older worker for positions for which she is not qualified or failing to consider her for positions for which she is qualified. Likewise, depending on the circumstances, the timing or sequence of events leading up to the decision to fire the employee also can support a finding of discrimination.

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Last week, New Jersey’s Appellate Division refused to dismiss a criminal indictment against an employee who took documents from her employer in an attempt to support her employment discrimination claims. While it is a criminal case, it undoubtedly has implications for employment lawyers and individuals with employment law claims.

Ivonne Saavedra worked for the North Bergen Board of Education in Hudson County, New Jersey. She is being prosecuted for taking 367 documents from her employer, including 69 original documents. According to the prosecutor, many of those documents are “highly confidential” and contain “very sensitive” information. A grand jury indicted Ms. Saavedra for second-degree official misconduct and third-degree theft.

According to Ms. Saavedra, she took the documents to help prove she was a victim of gender and ethnic discrimination at her job. She is arguing she had the legal right to take the documents based on a previous New Jersey Supreme Court case, Quinlan v. Curtiss-Wright Corp. Quinlan establishes a balancing test to determine if an employee is protected from retaliation when she takes documents from her employer to help prove an employment discrimination case. I discussed Quinlan in a previous article, Can You Be Fired For Giving Confidential Company Documents to Your Employment Lawyer?

In <a href="http://caselaw.findlaw.com/nj-superior-court-appellate-division/1653417.html" target="_blank"State v. Saavedra, the Appellate Division concluded that a judge does not have to conduct an analysis under Quinlan to determine if an employee can be prosecuted for taking documents from her employer, even if she took them in an effort to prove her discrimination claim. The Court concluded that since there is evidence to support each of the elements of the relevant crimes, the criminal indictment should stand.

Female office worker taking documents to prove discrimination lawsuit.jpgHowever, the Appellate Court recognized that at her trial Ms. Saavedra will have the opportunity to prove she had an honest belief that she had the right to take the documents to support prove her discrimination case. The appellate court referred to this as an “honest error” defense.

The decision notes that if Hudson County prosecuted Ms. Saavedra to retaliate against her for pursuing a discrimination case against the Board of Education, she can bring a civil claim against it for malicious prosecution. She also presumably could bring a retaliation claim under the New Jersey Law Against Discrimination (LAD). Of course, that is likely to be of little solace to Ms. Saavedra while she is facing a criminal prosecution.

The ruling also includes a very strong dissenting opinion from one of the three appellate judges. That judge takes the position that prosecuting Ms. Saavedra would be fundamentally unfair. In doing so, the dissent relies on the strong public policy embodied by the LAD and the Conscientious Employee Protection Act (CEPA) to protect employees against unlawful discrimination and retaliation. It explains that employees in Ms. Saavedra’s shoes are not on fair notice that they are not permitted to take confidential documents from their employers to try to support their discrimination or retaliation lawsuits, especially in light of the protection provided by the New Jersey Supreme Court in Quinlan.

Fortunately, since there is a dissenting opinion in the Appellate Division, there is a good chance the New Jersey Supreme Court will review the case. In the meantime, employees who are considering taking documents from their companies to try to prove discrimination or retaliation claims should act with extreme caution, and should strongly consider talking to an employment lawyer before deciding what to do.

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Earlier this month, a federal judge in New Jersey ruled that Bryan Maher can proceed with numerous employment law claims against his former employer, Abbott Laboratories.

Mr. Maher began working for Abbott in June 2008 as a Senior Distribution Specialist. In 2009, his sales numbers declined. By June the company began requiring him to participate in weekly one-on-one telephone coaching sessions. It also received several complaints from Mr. Maher’s customers. By late August 2009, the company placed Mr. Maher on an informal coaching plan and warned him he could be fired if his sales did not improve.

Disability discrimination -heart issue.jpgIn October 2009, Mr. Maher was diagnosed with atrial fibrillation (an irregular heartbeat) which was exacerbated by workplace stress. The company granted his request to take four days off from work for testing.

Mr. Maher continued to receive complaints from his customers, and his sales results did not improve. Eventually, the company began to prepare a Performance Improvement Plan (PIP).

On approximately February 10, 2010, Mr. Maher requested a short medical leave because he was feeling ill due to stress at work. He also reminded his boss that his son is autistic. According to Mr. Maher, his boss responded by saying “I don’t give a sh*t about your stress, your heart, and I hate to say it but your son either. We need sales and we need numbers.” As a result, Mr. Maher did not take a medical leave. Shortly thereafter, Abbott formally placed him on a Performance Improvement Plan (PIP).

In March 2010, Mr. Maher took two weeks off from work because he needed to care for his autistic son and his own health issues. In the meantime, Abbott received several additional complaints from his customers. Ultimately, on May 11, 2010, the company fired him for “poor performance.”

Mr. Maher then filed a lawsuit, claiming Abbott discriminated against him because he is disabled and because of his association with his disabled son, in violation of the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD). He also alleged Abbott failed to provide him a reasonable accommodation for his disability and retaliated against him because he requested one.

Abbott eventually filed a motion for summary judgment, seeking to dismiss Mr. Maher’s case. In Maher v. Abbott Laboratories, the Court dismissed portions of Mr. Maher’s claim that Abbott failed to accommodate his disability. For example, it dismissed a claim relating to his request for vacation time in June 2009 because Mr. Maher did not indicate he needed the time off because of a disability. It also dismissed his claim related to his request to transfer his New Jersey sales territory to another salesperson because (1) he did not tell anyone at Abbott he wanted this change because of his disability, (2) employers are not required to provide accommodations that would waive an essential job function, and (3) the accommodation would have imposed an undue hardship on Abbott’s business. The Court also dismissed Mr. Maher’s allegation that he was entitled to take two weeks off in February 2010 as a reasonable accommodation for his son’s autism since neither the ADA nor the LAD requires employers to provide reasonable accommodations for a family member’s disability.

However, the Judge permitted Mr. Maher to proceed with his claim that Abbott failed to accommodate his disability when he asked for time off for his own medical condition in February 2010. The Court found Mr. Maher requested a reasonable accommodation when he made this request since the company knew he had a heart condition and knew he wanted the time off because of it. The Judge concluded his boss’s hostile reaction could lead a jury to conclude Abbot refused to even consider accommodating Mr. Maher’s disability, in violation of the ADA and the LAD.

Further, the Court found the same evidence could support the conclusion that Abbott fired Mr. Maher because he requested an accommodation for his disability. Although the company claims it fired him for poor job performance, a jury could find this was a pretext (excuse) for disability discrimination. The Judge explained this conclusion is further supported by the fact that the company fired Mr. Maher only three months after his boss’s hostile reaction to his request for time off. It also pointed to evidence that many of the performance issues the company used to justify firing Mr. Maher may have been caused by the company’s poor policies and procedures rather than by anything he did wrong.

Ultimately, the Court ruled a reasonable jury could find the company had exaggerated Mr. Maher’s performance deficiencies to justify firing him. Accordingly, it permitted him to proceed with his disability discrimination claims under both the ADA and the LAD.

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On August 30, 2013, Governor Christopher Christie signed two new employment laws. The first law expands the New Jersey Law Against Discrimination (LAD) to protect employees who are trying to obtain information to support a potential claim of pay discrimination. The second new law prohibits employers from asking employees or job candidates to provide their private social media information to the company.

Whistleblower Protection for Employees Providing Information About Pay Discrimination

The first new law amends the LAD to prohibit employers from retaliating against employees because they ask a current or former co-worker about an employee’s “job title, occupational category, and rate of compensation, including benefits.” It also protects employees who ask about another’s employee’s “gender, race, ethnicity, military status, or national origin.” These new whistleblower protections apply only if the information or question is intended to help with an investigation of potential discrimination regarding “pay, compensation, bonuses, other compensation, or benefits.” However, the statute makes it clear it is not intended to require anyone to disclose this information about him or herself or another employee. This amendment to the LAD went into effect immediately.

Interestingly, the original version of the law would have been an amendment to New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA). However, Governor Christie issued a conditional veto that changed it to amend the LAD instead. As a result, the LAD’s two year statute of limitations applies to this new claim instead of CEPA’s one year statute of limitations. However, the change also shifted the protection from the employee who discloses the information to the employee who requests the information.

Restrictions on Requesting Information About Personal Social Media Accounts

New Jersey Expands LAD regarding Personal Social Media Accounts.jpgThe second new law prohibits employers from asking or requiring current employees and job candidates to provide usernames or passwords to their personal social media accounts, or to otherwise allow the company to access those accounts. Although the statute was passed primarily in response to employers asking employees to provide their Facebook passwords, it applies to all personal social media accounts including LinkedIn, Google+ and Twitter.

This new law has several express exceptions. Specifically, if an employer receives “specific information” about an activity on an employee’s personal social media account, it can conduct an investigation (1) to comply with another existing law, legal requirement or prohibition against “work-related employee misconduct,” or (2) to determine whether the employee improperly used the company’s confidential or proprietary information or financial data. It also makes it clear employers can access and view any information that is publically available about an employee, such as information posted publically on Facebook. This new law will go into effect in four months.

Unfortunately, Governor Christie used a conditional veto to remove a provision that would have created a new private legal claim for employees whose rights have been violated under the statute. Instead, the only penalty for a violation is a civil fine not to exceed $1,000 for a first violation and $2,500 for a second violation. However, it is likely employees who are fired because they refuse to provide their social media account information to their employers will be protected by the existing whistleblower protection of CEPA, or will have a claim for wrongful discharge in violation of New Jersey public policy.

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New Jersey’s Appellate Division recently recognized that a company cannot escape liability for discrimination by having someone else make the final termination decision. The case was filed by Tina Shipe, an employee who worked for several different Shop Rite supermarkets over 17 years. Ms. Shipe was the only female meat cutter who worked for her employer, Saker Shoprites, Inc.

In January 2008, Saker fired Ms. Shipe. Saker claims Ms. Shipe became extremely angry and cursed loudly enough that other employees and customers could hear her after her department manager, Chris Antimary, accused her of violating several store policies. Based on information he received from Mr. Antimary, the company’s senior vice president of human resources, Kevin Maroney, made the decision to fire Ms. Shipe.

In contrast, Ms. Shipe testified that Mr. Antimary treated her poorly from the first day she began working in his store. Mr. Antimary then falsely accused her of violating several store policies in an attempt to set her up to be fired. Ms. Shipe claims that although she was upset by the false accusations, she never cursed or raised her voice. Rather, Mr. Antimary confronted her, demanded that she admit she violated the store’s policies and got in her face in a way suggesting he wanted to fight her. Ms. Shipe was extremely upset by his behavior, and as a result stayed in the store bathroom for approximately 10 minutes while she composed herself and tried to stop crying.

NJ Appellate Decision - Liability for Gender Discrimination and Decision-Maker.jpgMs. Shipe sued, alleging gender discrimination in violation of the New Jersey Law Against Discrimination (LAD). At her trial, the jury found in her favor and awarded her $198,894 in past economic losses (back pay), $486,200 in future economic losses (front pay) and $145,860 in emotional distress damages. The judge subsequently awarded her more than $67,000 in attorney’s fees and costs.

The employer appealed, asking the Appellate Division to reverse the jury’s verdict. It argued there was not enough evidence to support the jury’s conclusion that it fired Ms. Saker because she is a woman, rather than because she was insubordinate after Mr. Antimary disciplined her. However, in Shipe v. Saker Shoprites, Inc. the court found there was enough evidence for the jury to conclude the meeting was a set-up to falsely discipline Ms. Shipe because of her gender, and that her testimony was enough to dispute the company’s claim it fired her for supposedly using profanity after the meeting.

Saker also argued there was no evidence that Kevin Maroney, the Vice President of Human Resources who made the decision to fire Ms. Shipe, had any discriminatory bias. In fact, Ms. Shipe did not even claim he discriminated against her.

However, the Appellate Division rejected this argument because Mr. Maroney relied on the information he received from Mr. Antimary, and the jury found that information was discriminatory. The court explained that if this was not legally actionable, companies could avoid responsibility for discrimination by having someone who does not know the employee make final termination (and other disciplinary) decisions based on discriminatory information. The court therefore concluded that although there was no evidence Mr. Maroney discriminated against Ms. Shipe, there was enough evidence to support the jury’s conclusion that Saker fired her because she is a woman.

Unfortunately, that is not the end of the story. Next week I will discuss the reason why the Appellate Division still reversed Ms. Shipe’s jury verdict, and why I think it was a mistake for it to have done so.

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Is Obesity a Disabilty in NJ or NY.jpgLast month the American Medical Association (AMA) voted to designate obesity as a disease. More specifically, it adopted a resolution which states that obesity is a disease that leads to other conditions such as Type 2 diabetes and cardiovascular disease. As a result of the AMA’s decision, it is likely that more employees who are fired, demoted, harassed, or otherwise treated worse at their jobs because they are overweight will be legally protected by both New Jersey and New York law.

Both the New Jersey Law Against Discrimination (LAD) and the New York Human Rights Law (NYHRL) prohibit employers from discriminating against employees on the basis that they are disabled. The two laws define the term “disability” broadly to include both physical and mental disabilities. Neither statute limits its definition to severe or permanent medical conditions. In particular, the LAD defines disability to include any “physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders.” Similarly, the NYHRL’s definition to mean a physical or medical impairment “resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”

Over a decade ago, in Viscik v. Fowler Equipment Co., the New Jersey Supreme Court concluded that an employee’s obesity can be a disability under the LAD, but only if it is “morbid.” Obesity is considered “morbid” if it prevents you from engaging in normal activities. In Viscik, the Court found the employee who filed the lawsuit was disabled because her obesity caused her other medical conditions including arthritis, a heart condition, obstructive lung disease and knee problems that limited her ability to walk. The court concluded this met the LAD’s definition of a disability.

Likewise, in Delta Air Lines v. New York State Division of Human Rights, a 1997 case, the New York Court of Appeals ruled that simply being overweight is not a disability under the NYHRL. However, it distinguished another case in which the company’s doctor concluded the employee was unable to perform her job because she was “grossly obese,” a diagnosed medical condition that impaired her ability to work. Thus, like the New Jersey Supreme Court, in the past New York’s highest court required an individual’s obesity to cause an illness, impairment or limitation before it can be considered a disability under the NYHRL.

But at least arguably, today the analysis could be much simpler. Since the AMA has deemed obesity itself to be a disease, it seems to fit within the LAD’s definition of disability as long as being overweight can be considered a form of malformation or disfigurement. Likewise, it seems to fall within the NYHRL’s definition since it is a physical or medical condition resulting from an anatomical condition that can be demonstrated by medically accepted clinical techniques.

Of course, how much this change actually will impact disability discrimination law is an issue that eventually will be decided by the courts. The bottom line is that the AMA’s new resolution could help extend protection against disability discrimination to additional employees who previously were not legally protected.

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