New Jersey Employment Lawyer Blog

Last week, in Walker v. Guiffre and Humphries v. Powder Mill Shopping Plaza, the New Jersey Supreme Court upheld the longstanding rule that a plaintiff can receive an enhanced attorney fee award under New Jersey laws that allow a prevailing plaintiff to recover his attorneys' fees from the defendant. This applies to many New Jersey employment laws, including the New Jersey Law Against Discrimination (LAD), the Conscientious Employee Protection Act (CEPA), and the New Jersey Family Leave Act (FLA).

This right to a contingency fee enhancement dates back to Rendine v. Pantzer, a 1995 New Jersey Supreme Court case which discusses an employee's right to recover his reasonable attorney's fees if he wins a case under the LAD. After the court calculates the attorneys' reasonable fee, it must determine whether and how much of an enhancement he should receive. The fee enhancement is intended to make up for the risk a lawyer takes when taking a case on a contingency fee basis. Contingency fee enhancements generally should range between five and fifty percent, and typically range between twenty and thirty-five percent. The maximum possible fee enhancement under New Jersey law is 100 percent, but such a high enhancement is available only in a "rare and exceptional case."

In contrast, in April 2010, in Perdue v. Kenny A., the United States Supreme Court recognized that, under federal law, an attorney fee enhancement is permitted only in "rare" and "exceptional" circumstances. Fortunately, in Walker and Humphries the New Jersey Supreme Court decided not to follow Perdue, and instead continued to follow Rendine. As a result, employees who bring claims under New Jersey fee-shifting statutes such as the LAD, CEPA and the FLA are entitled to seek enhanced attorney fees. However, employees bringing claims under federal employment laws such as the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Family & Medical Leave Act (FMLA), are rarely entitled to fee enhancements.

Continue reading "New Jersey Supreme Court Reaffirms Lower Threshhold for Attorneys' Fees Enhancements" »

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.

The 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.

Continue reading "Religious Ministers Are Not Protected by Anti-Discrimination Laws" »

Late last month, a Federal Judge in the Southern District of New York ruled that a job candidate can continue with his age discrimination claim against a prospective employer based on a discriminatory hiring decision made by independent contractors who had the apparent authority to make hiring decisions on the employer's behalf. Apparent authority is when a company's actions lead someone else to incorrectly believe that he or she is an employee or agent of the company. This decision follows an earlier decision by the Second Circuit Court of Appeals in the same case, which recognized that Employers Can Be Held Liable for Discriminatory Hiring Decisions Made By Independent Contractors.

The case, Halpert v. Manhattan Apartments, Inc., involves Michael Halpert, who was applying for a position as a "shower" for Manhattan Apartments, Inc. He was interviewed by Robert Brooks, a salesperson who worked for Manhattan Apartments as an independent contractor. Mr. Brooks did not have the authority to hire employees on behalf of Manhattan Apartments.

During Mr. Halpert's job interview, Mr. Brooks indicated that Mr. Halpert was "too old" for the job. Several days later, Manhattan Apartments' receptionist said the company was not hiring Mr. Halpert because "we were looking for someone younger." Mr. Brooks then repeated that Mr. Halpert was not qualified for the job because of his age.

Mr. Halpert sued Manhattan Apartments, claiming it failed to hire him because of his age in violation of the Age Discrimination in Employment Act (ADEA). After the Second Circuit ruled that an employer could potentially be held liable for the actions of an independent contractor, Manhattan Apartments filed a motion for summary judgment, arguing that Mr. Halpert was not its employee or agent, and there was not enough evidence to prove Mr. Brooks had the apparent authority to hire employees on its behalf.

However, the District Court disagreed. It found there was enough evidence for a jury to conclude that Manhattan Apartments had the apparent authority to hire Mr. Halpert. This evidence includes the fact that Manhattan Apartments allowed Mr. Brooks to use its offices, to answer his phones by saying "Manhattan Apartments, Inc.," and to use business card that identify himself as a "Licensed Assc. Broker" for "Manhattan Apartments Inc." It also included the fact that Manhattan Apartments' receptionist explained the decision not to hire Mr. Halpert by saying that "we were looking for someone younger." It therefore denied Manhattan Apartments' motion for summary judgment to potentially give Mr. Brooks an opportunity to prove his case at a trial.

Continue reading "Job Candidate Can Pursue Age Discrimination Claim Based on Decision by Independent Contractor" »

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.

The amendment also makes it clear that the employer has the burden to prove that an accommodation would impose an undue hardship on it. However, it makes it clear that 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.

Continue reading "New York City Clarifies Right to Reasonable Accommodations for Religious Beliefs" »

Last month, in Gibbs v. Caswell-Massey, New Jersey's Appellate Division ruled that Linda Gibbs could proceed with her disability discrimination lawsuit against her former employer, Caswell-Massey. Caswell-Massey is a luxury bath and body products company in Edison, New Jersey. It hired Ms. Gibbs in 1993 . She was gradually promoted through the company's ranks, and eventually became its Corporate Manager, Retail Stores and International Sales.

In 2000, Ms. Gibbs's doctor diagnosed her with sleep apnea. This disability causes Ms. Gibbs fatigue, and often makes it difficult for her to stay awake at work. For example, she occasionally nods off at her desk. Caswell-Massey warned Ms. Gibbs on several occasions that her unexcused absences, sleeping, and poor job performance were unacceptable, and that she could be fired if she had any further performance issues. Nonetheless, Ms. Gibbs received an overall performance rating of "above overall expectations" in both 2005 and 2006.

In November 2006, Ms. Gibbs took a four-week disability leave to have hernia surgery. The company fired her two days after she returned to work. It claims its decision to fire was based on information it received from Steven Culter during Ms. Gibbs's disability leave. Mr. Cutler was business partners with Ms. Gibbs' husband. He and Mr. Gibbs apparently worked together at the Route 18 flea market in East Brunswick, New Jersey. Mr. Cutler claimed that Ms. Gibbs was stealing products from Caswell-Massey, and her husband was selling them at the flea market. He eventually provided the company with photographs of Caswell-Massey's products that he was selling at the flea market, a copy of a book with Gibbs's handwriting that listed prices for Caswell-Massey products, and his own sworn statement claiming Ms. Gibbs admitted she had taken products from Caswell-Massey.

Caswell-Massey investigated Mr. Cutler's allegations. During the investigation, Ms. Gibbs claimed she did not know her husband was selling Caswell-Massey products at the flea market. She also claimed that Mr. Cutler was blackmailing her, and provided evidence including threatening voicemail messages that Mr. Cutler had left her. Caswell-Massey suspended Ms. Gibbs without pay while it conducted its investigation. At the conclusion of the investigation, it fired Ms. Gibbs, supposedly because she had violated the non-compete provision in her employment contract.

The trial court dismissed Ms. Gibbs's case, including her claim that Caswell-Massey fired her because of her disability in violation of the New Jersey Law Against Discrimination (LAD). It ruled that she did not have enough evidence to prove that Caswell-Massey's explanation for firing her was a pretext, or excuse, for discrimination.

The Appellate Division disagreed. It held that a reasonable jury could believe that Caswell-Massey discriminated against Ms. Gibbs, based on evidence supporting the conclusion that the company conducted an inept and cursory investigation, relied on Mr. Cutler's statements even though he was a biased and questionable source, and ignored Ms. Gibbs' 13 year history with the company, in addition to the lack of evidence that Ms. Gibbs' husband ever sold a single Caswell-Massey product. However, the Court also indicated that a jury could come to the opposite conclusion, and could find that the company fired Ms. Gibbs because she violated her non-compete agreement. As a result, the Appellate Division sent the case back to the trial court, so a jury can decide whether Ms. Gibbs has proved that Caswell-Massey illegally discriminated against her.

Continue reading "Jury to Decide Whether Caswell-Massey Discriminated Against Disabled Employee With Sleep Apnea" »

New Jersey's Appellate Division recently ruled that when a company does not follow through with the plan it used to justify firing an employee, such as its plan for a reorganization or reduction in force, that failure can be enough for a jury to conclude that the decision to fire the employee was discriminatory.

In Abraham v. American International Group, Inc., Lisbi Abraham sued American International Group (AIG) claiming the company fired him because of his race and national origin, in violation of the New Jersey Law Against Discrimination (LAD). Mr. Abraham is a United States citizen of Indian descent. His was AIG's Chief Technology Officer (CTO) for the company's Domestic Brokerage and Information Services Groups. The LAD prohibits companies from firing employees based on their race or national origin.

In October 2005, AIG issued a report which concluded that it should eliminate 13 of its 20 CTO positions. In May 2006, AIG fired Mr. Abraham. AIG claimed it fired him because it was restructuring the Information Services Group to eliminate duplication and redundancy of job functions.

The Appellate Division explained that one way a plaintiff can prove discrimination is by offering evidence that discredits the employer's explanation for its actions. It ruled that Mr. Abraham had evidence to discredit AIG's claim that it fired him as part of a job restructuring. In particular, although several other people temporarily took over Mr. Abraham's job duties after he was fired, none of his functions were permanently transferred to other employees. Since there is evidence that Mr. Abraham's job never was merged into another job, as AIG claimed it intended to do when it justified firing Mr. Abraham, the Appellate Division ruled that a jury could conclude that AIG fired him because of his race or national origin.

The Appellate Division was careful to recognize that courts should not act as "super-personnel departments," or second-guess employment decisions such as job restructuring. However, it also recognized that companies can violate the LAD in many "subtle and nuanced ways," that there is rarely "smoking gun" evidence to prove discrimination, and that often there are not even any overt acts of discrimination. The court concluded that, after a trial, a jury could find that AIG discriminated against Mr. Abraham because of his race or national origin, or it could find that AIG's decision to fire him was legitimate. It therefore sent his case back for a trial.

Continue reading "Employer's Failure to Follow Job Restructuring Plan Could Prove Discrimination" »

Last week, the Third Circuit Court of Appeals ruled that statistical evidence could be enough to prove that Newark's residency requirement for its non-uniformed employees has a disparate impact based on race. A disparate impact claim is when someone claims that a seemingly neutral policy has a disproportionately negative impact on a particular legally protected group.

Specifically, in Meditz v. City of Newark, Gregory Meditz sued Newark after it refused to hire him as its Housing Development Analyst because he lives in Rutherford, rather than in Newark, New Jersey. He claims the Newark's residency requirement for its non-uniformed employees is illegal because it has a disparate impact on non-Hispanic whites, since the population of Newark does not reflect the racial mix of the relevant job market. He alleges that fewer non-Hispanic white employees work for Newark as non-uniformed employees because of the residency requirement.

To support his claim, Mr. Meditz used statistics showing there is a much lower percentage of non-Hispanic white employees who work for Newark in non-uniformed positions (1) than there are in the general population of Newark, (2) than work for Newark in uniformed positions than non-uniformed positions, (3) than work for the government and private companies in Bergen, Essex, Hudson, Morris, Passaic, and Union Counties, and (4) than work for the Essex County government in Newark.

Despite this evidence, the District Court dismissed Mr. Meditz's employment discrimination lawsuit, finding his statistical evidence was not enough to prove that Newark's residency requirement has a disparate impact based on race. The lower court relied on the fact that "Newark is New Jersey's largest city with over 270,000 residents, 38,950 of whom are White." It concluded that "[g]iven its diversity and large population, there is no need to redefine the relevant labor market past city limits for purposes of Title VII analysis." Title VII is a federal employment law that prohibits employers from discriminating based on an employee's race, color, national origin, or gender.

However, the Court of Appeals disagreed and allowed Mr. Meditz to proceed with his case. It found his statistical evidence might be enough to prove that Newark's residency requirement has a disparate impact based on race. However, it ruled that the District Court has to determine the relevant labor market before it can determine whether Mr. Meditz's statistics prove his claim. The Third Circuit concluded that the District Court must consider factors including geographic location, available transportation to Newark, commuting patterns, and where employees working for private companies in Newark live.

If Mr. Meditz can prove that Newark's residency requirement has a disparate impact based on race, then Newark's only defense would be that it has a "business necessity" for having a residency policy. That means Newark would have to prove that the hiring criteria "must effectively measure the minimum qualifications for successful performance of the job in question." Otherwise, its residency requirement would have an illegal disparate impact based on race, in violation of Title VII.

Continue reading "Third Circuit Finds Newark Hiring Practice Might Discriminate Based on Race" »

On August 29, 2011, in Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, New Jersey's Appellate Division reversed a trial court's decision dismissing Thomas Bower's lawsuit against his former employer, the New Jersey Judiciary. Thomas Bowers, an African-American, worked for the New Jersey Judiciary as an Information Technology Analyst. He claimed the Judiciary failed to promote him to Acting IT Manager and subjected him to a hostile work environment because of his race. Mr. Bowers was the only African-American in Monmouth County's IT Division. In fact, there were no other African-American IT managers in the entire New Jersey Judiciary, and only one other racial minority, an Asian Indian.

Beginning in July 2005, Mr. Bowers' supervisor took an extended medical leave. Shortly after, the Judiciary asked Mr. Bowers to take over the duties of IT Manager. This decision was subsequently recommended by Monmouth County's Assignment Judge. Mr. Bowers performed the duties of the IT supervisor for approximately 8 months.

But when the Judiciary sought to formally appoint him as its Acting IT Manager, the Assistant Director of Technical Services and Operations, Jonathon Massey, gave a very negative opinion of Mr. Bowers, including claiming he "doesn't understand simple technical things," he "is lazy and stands around and watches others do the work," and that another supervisor described him as a "cocky, arrogant, lazy, weasel, creep" who "does what he wants, doesn't tell the truth" and has a "chip on his shoulder." Not surprisingly, Mr. Bowers was not formally named the Acting IT Manager. However, informally he continued to perform the responsibilities of the IT Manager until April 2006, when the Judiciary named Troy Fitzpatrick its new permanent IT Manager.

After Mr. Fitzpatrick became the IT Manager, he gave Mr. Bowers assignments that were normally given to lower level and less senior IT employees, like answering Help Desk calls and creating a Help Desk manual. Mr. Fitzpatrick told Mr. Bowers that he could not assign work to anyone else, and also told him he could not leave his desk for any reason unless he found someone else to cover the Help Desk. Mr. Fitzpatrick also sought information from other employees about Mr. Bowers' work ethic, and was always short and curt when he spoke to Mr. Bowers, as if he did not want to speak to him. In comparison, Mr. Fitzpatrick treated a newly hired white male employee much better than Mr. Bowers, such as giving him less work and not limiting his ability to leave his desk.

The trial court dismissed Mr. Bowers' race discrimination and harassment claims because he was not subject to racial epithets and there was no direct evidence of race discrimination, he did not have enough evidence to prove either of those claims. But the Appellate Division disagreed. It explained that "discrimination rarely rears its ugly head directly. Rather, it typically manifests itself in subtle ways." In particular, it found that a jury could find that Mr. Massey's extremely negative recommendation was false and discriminatory. It noted that Mr. Massey admitted he knew very little about Mr. Bowers. Instead, it ruled that only a jury can decide whether the Judiciary's decision not to make Mr. Bowers its Acting IT Manager was discriminatory.

Next week, I will discuss Mr. Bowers' retaliation claim. In a subsequent article, I will discuss his claim that the judiciary failed to accommodate his disability.

Continue reading "IT Professional Given Second Chance in Race Discrimination Case Against New Jersey Judiciary" »

Yesterday, a federal Judge in Manhattan dismissed a class action claim from a gender and pregnancy discrimination lawsuit that the United States Equal Employment Opportunity Commission ("EEOC") had filed against Bloomberg L.P. In the case, the EEOC alleged that Bloomberg had engaged in a pattern and practice of discrimination against pregnant employees and female employees upon their return from maternity leaves. Judge Loretta A. Preska, the Chief Justice of the United States District Court for the Southern District of New York, dismissed the class action claim because she found the EEOC had not presented enough evidence to prove a pattern and practice of gender or pregnancy discrimination.

A pattern and practice case is when a group of employees claim a company has a broad practice or systemic pattern of unlawful discrimination. In this instance, the EEOC filed the lawsuit on behalf of female employees who claimed Bloomberg had demoted them, lowered their salaries, reduced the number of employees reporting to them, took away some of their job responsibilities, excluded them from meetings, and/or otherwise subjected them to stereotypes about female caregivers. In addition to the three plaintiffs named in the original lawsuit, 78 other women had joined the case, for a total of 81 class members.

In her 64-page opinion in EEOC v. Bloomberg L.P., Judge Preska explained that ordinarily employees have to prove a pattern and practice of discrimination with a combination of statistical and anecdotal evidence of discrimination, to show the discrimination was part of a company-wide pattern or practice. She indicated that it is unusual that anecdotal evidence alone can prove a pattern or practice of discrimination, especially at a large company like Bloomberg, which employs more than 10,000 employees.

However, the EEOC apparently did not have any statistical evidence to support its claim. It also did not have any direct evidence of discrimination, or any evidence of an explicitly discriminatory policy. Instead, it tried to rely only on anecdotal evidence of discrimination. This evidence included the fact that nearly every one of the class members claimed that Bloomberg had decreased her compensation, job responsibilities and/or number of direct reports, either after she became pregnant or after she returned from her maternity leave.

In contrast, Bloomberg had at least two expert witnesses who concluded that there was no pattern or practice of discrimination at the company. Specifically, one of Bloomberg's expert witnesses, Dr. Michael Ward, used statistics to conclude that class members actually received higher average compensation than non-class members. He also found no significant differences between the raises class members received versus non-class members. Another expert for Bloomberg, Dr. John Johnson, concluded that the class members actually received nearly better raises after maternity leaves than employees who took time off for other reasons.

Ultimately, the Court concluded that while there might be some individual cases of pregnancy and gender discrimination at Bloomberg, the EEOC did not have enough evidence to prove a pattern or practice of discrimination. Accordingly, Judge Preska dismissed the class action from the case. However, the EEOC has indicated that it intends to continue to pursue the individual claims on behalf of the named plaintiffs.

Continue reading "New York Judge Dismisses Pregnancy Discrimination Class Action Against Bloomberg L.P." »

Earlier this year, the United States Supreme Court ruled that an employee can pursue a retaliation claim under Title VII of the Civil Rights Act of 1964 based on being fired because his fiancée objected to discrimination by the same employer. Title VII is a federal law that prohibits employment discrimination based on gender, race, color, and national origin. It also prohibits employers from retaliating against employees who object to discrimination that violates Title VII.

Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless, LP (NAS). Ms. Reglado filed a claim of sex discrimination against NAS with the Equal Employment Opportunity Commission (EEOC). NAS fired Mr. Thompson three weeks after it learned that Ms. Reglado had filed her discrimination claim. Mr. Thompson eventually sued NAS, alleging it retaliated against him by firing him because his fiancée had filed a discrimination claim against it.

The District Court dismissed Mr. Thompson's case, ruling that Title VII does not permit third party retaliation claims. That decision was affirmed on appeal. But in Thompson v. North American Stainless, LP, the United States Supreme Court disagreed, and instead ruled that Mr. Thompson has a valid retaliation claim under Title VII because "a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired."

The Supreme Court decided not to set a bright line rule on what type of personal relationship is enough to claim that a company retaliated against am employee based on someone else's legally protected activity. It noted that a close family member will almost always meet the standard, but left open whether retaliation against an employee's girlfriend, boyfriend, close friend, or trusted co-worker would be protected.

The United States Supreme Court's decision in Thompson is similar to the New Jersey Supreme Court's 1995 ruling in Craig v. Suburban Cablevision. Craig holds that the anti-retaliation provision of the New Jersey Law Against Discrimination prohibits an employer from retaliating against an employee's close friends and relatives who work for the same company, since otherwise employers could discourage employees from complaining about discrimination by threatening, intimidating, or otherwise harming their friends or family.

Continue reading "Supreme Court Finds Retaliation Against Employee's Fiancee Violates Federal Anti-Discrimination Law" »

On June 20, 2011, in a closely watched employment law case, the United States Supreme Court ruled that a group of approximately one-and-a-half-million female employees of Wal-Mart could not bring a class action gender discrimination lawsuit against the company. Specifically, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court found the women's claims were not similar enough to each other to proceed as a class action. It reached that conclusion because the alleged discriminatory decisions were made by hundreds of different managers throughout the country, and were not based on a uniform corporate policy.

Three women, Betty Dukes, Christine Kwapnoski, and Edith Arana filed the lawsuit. They alleged that Wal-Mart gave its local store managers broad discretion to make salary and promotional decisions, the managers used that discretion to discriminate against women, and the company knew about the discrimination but did nothing to stop it. The women claim this is discrimination on the basis of their sex, in violation of Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employment discrimination due to gender, race, color, and religion.

Class actions are cases in which one or more individuals bring a case on behalf of a much larger group. To bring a class action, the plaintiffs must prove:

1. The class is so large that it is impractical for each plaintiff to sue individually;


2. There are questions of law and fact common to the whole group;


3. The claims of the plaintiffs who filed the lawsuit (the class representatives) are typical of the claims of the rest of the group; and


4. The class representatives will fairly and adequately protect the interests of the whole group.

In the Walmart case, the Supreme Court held that the plaintiffs could not meet the first two requirements because they did not have any evidence that Wal-Mart had a company-wide policy or practice of discriminating against women. The Court found it is not enough to show the company gave broad discretion to its managers, and many or most of those managers abused their discretion by discriminating. Rather, it concluded that since the members of the potential class had been impacted by millions of separate employment decisions made by thousands of different supervisors, it would be impossible to decide all of their claims in a single case. As a result, it ruled that the case cannot proceed as a class action. Instead, it sent it back to the trial court so Ms. Dukes, Ms. Kwapnoski, and Ms. Arana each can try to prove her individual gender discrimination case against Wal-Mart.

Continue reading "Supreme Court Rejects Gender Discrimination Class Action Against Wal-Mart" »

Last November, I wrote about a potential new law that would make it illegal for companies in New Jersey to say that unemployed job candidates need not apply for job openings. Governor Christopher Christie conditionally vetoed the bill, and recommended several changes to it. The Legislature passed an amended version of the bill, which Governor Christopher Christie signed it into law on March 29, 2011. The new law goes into effect on June 1, 2011.

Under the new unemployment discrimination law, it is illegal for employers to knowingly or purposefully publish or print on the internet a job advertisement that states that (1) being currently employed is a job requirement; (2) the employer will not consider job applicants who are currently unemployed; or (3) the employee will only consider job applicants who are currently employed. However, the law does not apply if it would conflict New Jersey civil service laws. It also does not prevent companies from advertising that only job applicants who are currently working for the employer will be considered.

The new employment law statute also makes it clear that it does not prohibit employers from advertising any other qualifications for a job permitted by law, such as requiring a valid professional or occupational license, certificate, registration, permit or other credential, or a minimum level of education, training, or experience.

The new law makes it clear that it does not give individuals who have been impacted the right to bring a private lawsuit. Instead, employers who violate the law are subject to fines of up to $1,000 for a first violation, and up to $5,000 for any subsequent violations. This is significantly lower than the originally proposed fines of up to $5,000 for a first violation and up to $10,000 for any subsequent violations.

Continue reading "New Jersey Makes it Illegal to Discriminate Against Unemployed Job Candidates" »

Last week, I discussed the Equal Employment Opportunity Commission ("EEOC")'s new regulations regarding the Americans with Disabilities Act Amendments Act (ADAAA) which discuss the newly broadened scope of the ADA, and the terms "major life activity" and "substantially limited." In this article, I will focus on ADAAA regulations that cover the concept of "mitigating measures" for disabilities, and how to prove that an employee has a "record of" a disability or is "regarded as" having a disability.

What Are "Mitigating Measures," and When Can They Be Taken Into Consideration Under the ADAAA?

Under the ADAAA, most "mitigating measures" must be ignored when determining whether an individual is disabled include. A mitigating measure is something that reduces or minimizes the limitations caused by a disability. Examples of mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices, hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

However, the new ADAAA regulations indicate that it is appropriate to consider the negative side effects of a mitigating measure when determining whether an individual is disabled. Similarly, it is proper to consider a mitigating measure when deciding whether an employee is qualified for his job, or is entitled to a reasonable accommodation for his disability.

What Does it Mean to Have a "Record of" a Disability?

In addition to protecting individuals who are actually disabled, the ADA protects individuals with a "record of" a disability. Under the new ADAAA regulations, someone has a record of a disability if he previously had an impairment that substantially limited him in a major life activity, or was misclassified as having an impairment that substantially limited a major life activity.

What Does it Mean to Be "Regarded as" Having a Disability?
The ADAAA also protects individuals who are "regarded as" being disabled. According to the new regulations, this includes any employee whose employer correctly or incorrectly believed he has an impairment, unless the employer reasonably believed the impairment was both minor and expected to last for six months or less. Unlike the previous ADA regulations, under the new regulations an employer does not have to believe the impairment substantially limited the employee's ability to perform a major life activity to regard an employee as disabled.

Continue reading "More About the EEOC's New Americans with Disabilities Act Regulations" »

As I previously discussed, protection for disabled employees was vastly expanded on January 1, 2009, when the Americans with Disabilities Act Amendments Act (ADAAA), a law expanding the scope of Americans with Disabilities Act (ADA), went into effect. On March 25, 2011, the United States Equal Employment Commission (EEOC) established its final regulations clarifying the ADAAA. Courts generally must follow these regulations unless they are inconsistent with the ADAAA.

Below, I discuss some of the regulations regarding the scope of the ADAAA, and the terms "major life activity" and "substantially limited." Next week, I will discus additional regulations that explain when an employer can consider "mitigating measures" for disabilities, and how to prove that someone is covered by the ADA because he has a "record of" a disability or is "regarded as" having a disability.

The Scope of the ADAAA
easier for employees to meet that definition. The ADA still covers individuals who have (1) an actual physical or mental impairment that "substantially limits" a "major life activity;" (2) a "record of" such an impairment, and (3) are "regarded as" having an impairment. However, the meanings of those terms have been broadened significantly.

What is a "Major Life Activity" Under the ADAAA
The regulations explain that the term "major life activity" includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

Some impairments almost always are considered disabilities. Examples include deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

What Does it Mean to "Substantially Limit" a Major Life Activity?
The regulations say the term "substantially limits" should be interpreted broadly and does not necessarily require an individual to be severely or significantly limited. Generally, the focus should be on whether the employer discriminated against the employee, not on whether the employee meets the definition of disabled.

They also say that, when determining whether the impairment is a disability, you can consider the condition, duration, and manner in which an individual can perform a major life activity. They further clarify that an impairment can be covered by the ADAAA even if it lasts less than six months, is episodic, or is in remission. For example, episodic impairments like epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia, and cancer in remission, all can be impairments under the ADAAA.

Continue reading "EEOC Issues New Americans with Disabilities Act Regulations" »

A group of six female employees of Bayer HealthCare Pharmaceuticals recently filed a class action lawsuit claiming the company discriminated against them because of their gender. The case, which was filed in the United States District Court in Newark, New Jersey on March 21, 2011, seeks $100 million in damages.

The lawsuit claims Bayer discriminated against its female employees who hold Associate Director and higher level positions, in violation of the New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964. According to Katherine Kimpel, the employment lawyer who represents the plaintiffs in the lawsuit, "Bayer engages in systemic discrimination against its female employees - particularly those with family responsibilities - by paying them less than their counterparts, denying them promotions into better and higher paying positions, limiting their employment opportunities to lower and less desirable job classifications, and exposing them to different treatment and a hostile work environment."

According to a press release issued by the law firm representing the female employees, the lawsuit claims Bayer published articles describing women as being prone to "mood swings," "indecision," and "backstabbing," and concluding that "women with power are 'loose cannons' who often feel threatened by colleagues." The case further alleges that Bayer's managers made disparaging comments about working mothers, including saying the company "needed to stop hiring women of reproductive age."

According to a company spokesperson, "Bayer denies the allegations of gender discrimination and will vigorously defend itself against these charges." However, "Bayer will not comment further on pending litigation, other than to note that it is committed strongly to a policy of non-discrimination and equal treatment for all employees." Bayer HealthCase Pharmaceuticals, which is a subsidiary of Bayer Corporation, has its headquarters in Wayne, New Jersey.

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