Articles Posted in Discrimination

On August 8, 2017, Governor Chris Christie signed into law an amendment to the New Jersey law Against Discrimination (“LAD”) that provides additional protection to members of the United States military.  The amendment went into effect immediately.

New Jersey Law Against Discrimination Protects Members of US MilitaryPrior to the amendment, the LAD included “liability for service in the Armed Forces of the United States” as a legally protected category, but only in the context of employment and entering into contracts.  The LAD defines “liability for service in the Armed Forces” to mean being subject to being: (1) ordered into “active service in the Armed Forces of the United States by reason of membership in the National Guard, naval militia or a reserve component of the Armed Forces of the United States,” or (2) “inducted into such armed forces through a system of national selective service.”

Among other changes, under the new amendment the LAD now prohibits discrimination to this category of members of the Armed Services in the context of housing, making loans and providing access to places of public accommodation.  Places of public accommodations are places that are generally accessible to members of the public such as restaurants, hotels, stores, parks, hospitals, theaters, colleges and universities.

On August 3, 2017, New Jersey’s Appellate Division reversed a trial court’s opinion that had dismissed an employee’s pregnancy discrimination case, finding enough evidence from which a jury could conclude that the company’s claim it fired her for insubordination was a pretext for (excuse to cover up) discrimination.

Employee wins appeal in pregnancy discrimination caseSandra Roopchand worked as a medical technician for Complete Care, a medical office, from January 2013 through July 2014. The business was run by two brothers-in-law, Richard Schaller, M.D. and Robert Fallon, D.C.  Ms. Roopchand’s job duties included patient care, administrative responsibilities and cleaning and restocking the exam rooms. Up until the day she was fired, Complete Care had never disciplined Ms. Roopchand or criticized her about her job performance.

In early July 2014, Ms. Roopchand learned she was pregnant.  Since she suffers from hypothyroidism, her pregnancy was considered high-risk.

The Third Circuit Court of Appeals recently recognized that a supervisor’s single use of a racial epithet can be enough, on its own, to create a hostile work environment under federal law.  This is consistent with longstanding president under both the New Jersey Law Against Discrimination and the New York State Human Rights Law.

Racial Harassment Based on Single Discriminatory RemarkThe case was brought by Atron Castleberry and John Brown, both of whom worked as laborers for Chesapeake Energy Corporation through a staffing-placement agency, STI Group.  Mr. Castleberry and Mr. Brown are African American.

Mr. Castleberry and Mr. Brown allege they were exposed to racist behavior at their job.  For example, they claim that someone wrote “don’t be black on the right of way” on the sign-in sheet several different times. They also indicate that, despite having more experience working on pipelines, Chesapeake did not permit them to work on pipelines other than to clean them.

Earlier this week, the New Jersey Supreme Court clarified how to determine whether an employer fired an employee because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”).

Nurse wins appeal in disability discrimination caseMaryanne Grande, RN, worked for Saint Clare’s Health System for approximately 10 years.  During that time she suffered four separate work-related injuries that required her to take significant time off and led to additional periods during which she only could work light duty.

In February 2010, while moving an obese patient from a stretcher to a bed, Ms. Grande had to grab the patient to prevent him from falling.  She injured her cervical spine and needed surgery which required over four months of recovery and rehabilitation.  When she finally returned to work she had to work light duty for several weeks.

A recent employment discrimination case makes it clear that the primary factor to determine who is an “employer” under the New York State Human Rights Law (“NYSHRL”) law is whether the party has the power to control how the worker conducts his or her job.

The case was decided in the context of the NYSHRL’s prohibition against employers discriminating against individuals who have been criminally convicted in the past.  Specifically, with limited exceptions, the NYSHRL makes it unlawful for an employer to discriminate against an employee or job candidate because he previously was convicted of committing a crime.  The statute also prohibits any person or entity, whether or not an employer, from aiding or abetting a violation of the NYSHRL.

Delivery Workers Allege Employment DiscriminationTrathony Griffin and Michael Godwin worked for Astro Moving and Storage Co.  Astro has a contract with Allied Van Lines, Inc. pursuant to which Astro provides moving and storage services to Allied.  That contract prohibits Astro from using any workers who have been convicted of a crime on any assignment for Allied.

New Jersey’s Appellate Division recently ruled that federal labor law does not preempt an employee’s disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”) or retaliation claim under the Workers’ Compensation Law (“WCL”).  Federal labor law preempts state law claims that require an interpretation of a collective bargaining agreement (“CBA”) between an employer and a union, meaning any such state law claims cannot proceed.

Truck driver alleges disability discriminationBrian Hejda, a union member, worked as a commercial truck driver for Bell Container Corporation.  In August 2012, he suffered a knee injury at work.  Mr. Hejda’s doctor placed him on restrictions and required him to work “light duty.”  Bell did not return him to work because it did not have a light duty position for him.  An orthopedist subsequently cleared Mr. Hejda to return to work in late September, but indicated he needed the same restrictions and could not drive a commercial truck.

In February 2013, another orthopedist cleared Mr. Hejda to return to work without any restrictions.  Several weeks later, Bell sent a letter to the union indicating that under a Department of Transportation (“DOT”) Federal Motor Carrier Safety Regulation, Mr. Hejda could not return to driving a commercial truck until a Certified Medical Examiner medically examined and certified him “physically qualified to operate a commercial motor vehicle.”

On May 4, 2017, New York City Mayor Bill DeBlasio signed into law an amendment to the New York City Human Rights Law (“NYCHRL”).  Under this new law, which is intended to reduce pay discrimination, New York City employers cannot ask or say anything to job applicants or the applicant’s current or former employers to try to learn about the applicant’s salary history.  However, they are permitted to tell job applicants about the anticipated salary or salary range for the position.

Candidate offered job at end of interviewThe new law also prohibits New York City employers and employment agencies from relying on a job applicant’s salary history when they make decisions about salary, benefits or other compensation during the hiring process.  That expressly includes prohibiting using such information when negotiation an employment contract with a new employee.  However, the prohibition does not apply to: (1) job transfers and promotions within the same employer; (2) instances where there is another federal, state or local law that specifically permits or requires salary history to be disclosed or verified to determine an employee’s compensation; or (3) public employees whose salary, benefits or compensation is determined by a collective bargaining.

In addition, this amendment to the NYCHRL prohibits employers and employment agencies from searching public records to try to find out about a job applicant’s salary history.  But they can obtain background checks on job candidates, even if the background check includes salary history information, as long as they do not use that information when making decisions about salary, benefits or compensation during the hiring process.

Unemployment Insurance BenefitsEarlier this month, in a precedent-setting opinion, New Jersey’s Appellate Division ruled that the unemployment insurance benefits a former employee receives after being fired do not reduce the amount of lost wages the employee can recover in an employment discrimination lawsuit.

Rex Fornaro worked as a flight instructor for Flightsafety International, Inc.  After Flightsafety fired him, he brought a disability discrimination and retaliation lawsuit against it under the New Jersey Law Against Discrimination (“LAD”).

After a trial, a jury concluded that Flightsafety had discriminated against Mr. Fornaro because he is disabled and because he requested a reasonable accommodation for his disability.  The jury awarded him $83,000 in past economic damages (“back pay”), but did not award him anything for his alleged emotional distress.  A judge subsequently awarded Mr. Fornaro’s lawyers a total of approximately $380,000 in attorneys’ fees and costs.

Earlier this month, the United States District Court for the District of New Jersey permitted an employee to continue with his claim that his employer harassed him because he is disabled, but dismissed his other disability discrimination claims.

Francis Gavin worked for Haworth, Inc. in various sales roles.  Mr. Gavin has a back disability which required him to undergo several surgeries and time off from work.  Most recently, he took off two weeks after lumbar spinal fusion surgery in August 2012.  He returned to work gradually, with medical restrictions for approximately 4 ½ months.

Employee with back disability can pursue harassment claim.After he returned to work, Mr. Gavin’s supervisor, Henry Pizoli, frequently made disparaging comments about his back condition.  For example, he commented about the fact that Mr. Gavin had to wear a duragesic patch and a back brace, saying it “doesn’t look good in front of customers” and asked him in front of a customer if he would be “able to work normally without this [back condition] being the center of attention.”  Mr. Pizoli also told Mr. Gavin he “should have never come back to work” after his surgery, and repeatedly suggested he should “leave.”

EEOC Issues New National Origin Discrimination Enforcement GuidanceLast month, the United States Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).

While the Guidance is not legally binding, it explains the position of the Commissioner of the EEOC.  Below is a brief overview of some of the most noteworthy topics it addresses:

Definition of National Origin

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