New Jersey Employment Lawyer Blog

Articles Posted in Religious Discrimination

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In a ground-breaking employment law decision, New Jersey’s Appellate Division recently ruled that an employee can sue for a hostile work environment if his employer harasses him based on a mistaken belief that he belongs to a legally-protected group. Specifically, the court allowed an employee to proceed with his claim that his supervisors harassed him because they mistakenly believed he is Jewish, even though he is not.

Mr. Cowher’s Supervisors Harassed Him Because They Thought He Was Jewish

Myron Cowher worked as a truck driver for Carson & Roberts for approximately two years. His supervisors made anti-Semitic slurs to him on a daily basis. For example, they referred to him as “Jew Bag,” “Jew Bastard,” “you Hebrew,” “bagel meister,” “Jew burger” and “f—ing Hebrew.” They even told him “[i]f you were a German, we would burn you in the oven.” Mr. Cowher’s supervisors apparently made these comments because they thought he was Jewish.

New Jersey Law Prohibits Discrimination Based on Perceived Membership in a Legally-Protected Group

The trial court dismissed Mr. Cowher’s case because he could not prove his employer harassed him because he is a member of any legally-protected group. However, in Cowher v. Carson & Roberts, the Appellate Division reversed that decision. It explained that it is well recognized that it is illegal for a company to harass or discriminate against an employee based on its mistaken belief that that he has a disability. It found there is no reason to treat disabilities differently than other legally-protected categories, such as race or religion. It therefore ruled that Mr. Cowher can proceed with his harassment claim on the theory that his supervisors harassed him because they mistakenly perceived him to be Jewish.
Employment Law Justice.jpgThe appellate court indicated that the relevant question to determine whether this form of harassment violates of the New Jersey Law Against Discrimination (LAD) is the impact the derogatory comments would have had on a reasonable person who is Jewish, rather than the impact on an employee whose employer mistakenly believes he is Jewish. However, to prove that he is entitled to recover damages, Mr. Cowher will have to prove that he was offended by the comments, and that they caused him emotional distress damages and/or some other harm.

Although the case addresses discrimination based on being Jewish, its reasoning appears to apply to any form of harassment that is prohibited by the LAD. Thus, for example, it seems to mean it would be unlawful for a company to harass an employee because it mistakenly believes he is a particular age, race, or sexual orientation.

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Yesterday, a unanimous United States Supreme Court ruled that ministerial employees of religious groups cannot bring employment discrimination claims against the religious groups for which they work. It ruled that those claims would violate the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

The case involved Cheryl Perich, a teacher for the Hosanna-Tabor Evangelical Lutheran Church and School. Ms. Perich took time off because she had a disability, narcolepsy. When she tried to return to work, the Church fired her. The Church specifically stated that Ms. Perich’s threat to bring a discrimination lawsuit against it was one of the reasons it fired her.

Ms. Perich then filed a Charge of Discrimination with the United States Equal Opportunity Commission (EEOC). She claimed the Church had wrongfully terminated her employment, in violation of the Americans with Disabilities Act (ADA) by firing her because she has a disability, and in retaliation for her threat to bring a disability discrimination lawsuit. The EEOC eventually filed a lawsuit against the Church, alleging it fired Ms. Perich in violation of the ADA.

Us_Supreme_Court_.jpgThe Supreme Court ruled that the First Amendment requires a ministerial exception to federal and state anti-discrimination laws. Specifically, it held that “requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so . . . interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” It concluded this would violate the First Amendment’s Free Exercise Clause because it would be a government interference with an internal church decision that impacts the church’s faith and mission. As a result, the Supreme Court ruled that Ms. Perich cannot proceed with her lawsuit.

The Court did not define who is a “minister” protected by this exception. However, it found Ms. Perich was a “minister” even though she was a teacher. It based its conclusion on facts including, among other factors, that (1) the Church commissioner her as a minister, (2) she had substantial religious training and had to pass an oral examination before she could be commissioned as a minister, (3) she held herself out as a minister and received a special housing allowance and tax benefits as a result, (4) she was assigned to perform her job “according to the Word of God,” (5) her job duties required her to teach the “Word of God” and to lead her students in prayer three times a day, and (6) twice a year she lead a school-wide chapel service.

The Supreme Court noted that it was not deciding whether the ministerial exception bars other types of lawsuits against religious groups, such as lawsuits for breach of employment contracts or personal injury claims against religious employers.

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Earlier this year, Mayor Michael Bloomberg signed into law an amendment to the New York City Human Rights Law (NYCHRL). The amendment clarifies when employers in New York City are required to provide reasonable accommodations for the religious observances and practices of their employees and prospective employees.

Employers must provide reasonable accommodations unless they cause the employer an undue hardship. The amendment to the NYCHRL indicates that some of the factors to consider when determining if an accommodation causes an undue hardship include:

1. The nature and cost of the accommodation;
2. The financial resources of the facility;
3. The number of employees working at the facility;
4. The effect providing the accommodation would have the facility’s expenses and resources;
5. The overall financial resources of the employer;
6. The number of employees working for the employer;
7. The number, type, and location of the employer’s facilities;
8. The composition and functions of the employer’s workforce; and
9. How geographically spread out or close together the employer’s facilities are.

NYC Skyline.jpgThe amendment also makes it that the employer has the burden to prove an accommodation would impose an undue hardship on it. However, it makes it clear an employer is not required to provide a reasonable accommodation for an employee’s religious practice or belief if the employee would be unable to perform the essential functions of his or her job even with the accommodation.

New York State, New Jersey, and federal law already require employers to provide reasonable accommodations for employees’ religious belief. However, this law is significant because New York City law has been interpreted very broadly. For example, as discussed in a previous article, New York’s Appellate Division has ruled, in the context of reasonable accommodations for a disability, that an Extended Medical Leave Can Be Reasonable Accommodation Under New York Law.

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The New Jersey Law Against Discrimination requires employers to provide reasonable accommodations to allow employees to observe their sincerely held religious practices and observances, unless the company cannot accommodate the employee without causing an undue hardship to its business. Last month, New Jersey’s Appellate Division reversed a trial court’s decision which had dismissed a religious discrimination lawsuit in which the employee, Gabriel Sepulveda, claimed his employer failed to reasonably accommodate his belief that Sunday should be a day of rest.

religions.jpgMr. Sepulveda is a born-again Christian. When Borne Holding Co. suddenly required its employees to work on Sundays, Mr. Sepulveda refused to do so because working on Sunday conflicts with his religious beliefs. Borne fired him as a result. It did so without ever engaging in the required “interactive process,” meaning no one at the company spoke to Mr. Sepulveda to determine whether there was another way to accommodate his religious belief, such as by having him work overtime on weekdays or Saturdays instead of Sundays.

Prior to the appeal, the trial court dismissed Mr. Sepulveda’s case because it found his religious belief was not “sincerely held.” It relied on the fact that after Borne fired him, Mr. Sepulveda worked at two other companies where he worked on Sunday evenings. However, Mr. Sepulveda explained that since his Sabbath ended at sundown, those jobs did not conflict with his religious beliefs. He also claimed that he had to accept those jobs because he was desperate to find work.

In an unpublished opinion, Sepulveda v. Borne Holding Co., Inc., the Appellate Division found the trial court should not have dismissed Mr. Sepulveda’s case. Rather, the Court concluded that a jury should decide whether Mr. Sepulveda had a “sincere” religious belief that prohibited him from working on Sundays. Accordingly, it sent Mr. Sepulveda’s case back to the trial court to give him a chance to try to prove his case.

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New Jersey’s Appellate Division recently upheld a jury verdict which found Avaya, Inc. liable for retaliation in violation of the New Jersey Law Against Discrimination. The case is LaFranco v. Avaya, Inc. It involves an employee, Mark LaFranco, who responded to his supervisor’s anti-Semitic statement by emphatically indicating that he is Jewish. In an unpublished opinion, the appellate court found the tone and context of Mr. LaFranco’s response indicated he was offended by the statement. In addition, Mr. LaFranco reasonably believed the comment was religious discrimination. Accordingly, his response was a legally protected objection to unlawful discrimination.

Mr. LaFranco worked as a salesperson for Avaya, a telecommunications company, for more than 12 years. He frequently exceeded his sales quotas and received large commissions. Prior to 2002, all of his performance reviews were positive.

In August 2001, Mr. LaFranco reported to his boss, Patrick Iraca, that he had been improperly denied $10,000 in commissions. Mr. LaFranco subsequently reminded Mr. Iraca of the issue, and suggested that Mr. Iraca should discuss it with his boss. In response, Mr. Iraca asked, in a disgusted voice, “What are you, a Jew?”

Mr. LaFranco, who is half Jewish, was shocked and insulted by the question. He turned and looked at Mr. Iraca before he responded, “Yeah, I am.” He then stared at Mr. Iraca for several seconds before Mr. Iraca turned and stormed out of the room. Mr. Iraca did not speak to Mr. LaFranco for the rest of the evening.

From that point on, Mr. Iraca’s attitude toward Mr. LaFranco was hostile and malicious. Among other things, he undermined Mr. LaFranco’s sales efforts, subjected him to unnecessary criticism and scrutiny, failed to give him credit for many of his sales, disproportionately increased his sales quota, decreased his sales territory, excluded him when he redistributed a former salesperson’s territory, and berated him in front of his peers. Mr. Iraca also included unwarranted criticism in Mr. LaFranco 2002 performance review, such as falsely accusing him of insubordination. He then placed Mr. LaFranco on a performance development plan, because it was a necessary step before he could fire him. Shortly thereafter, Avaya fired Mr. LaFranco.

The New Jersey Law Against Discrimination prohibits employers from retaliating against an employee because he opposes a practice he reasonably believes violates the Law Against Discrimination. For example, it is unlawful to retaliate against an employee who makes a good faith objection to discrimination or harassment due to age, race, gender, or religion.

In LaFanco, the jury found that Mr. LaFranco proved Avaya retaliated against him because he had opposed an act he reasonably believed was discriminatory. The Appellate Court upheld the jury’s verdict. It found Mr. LaFranco reasonably believed Mr. Iraca’s question, “What are you, a Jew?,” was an act of religious discrimination. It also concluded that under the circumstances, including Mr. LaFranco’s tone and demeanor, his response “Yeah, I am” clearly opposed Mr. Iraca’s discriminatory practice.

The Appellate Division affirmed Mr. LaFranco’s jury verdict of $158,310 in lost wages, $1,000 in emotional distress damages, more than $10,000 in prejudgment interest, and over $365,000 in attorney’s fees. The jury also awarded Mr. LaFranco $45,000 for failing to pay him commissions in breach of his employment contract.

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