Discrimination

New Jersey Judge Allows Disability Discrimination Case to Proceed

August 14, 2012 | by Jonathan I. Nirenberg

Recently, a federal judge in the District of New Jersey allowed an employee to continue with his disability discrimination case, largely based on testimony that his boss told him he was “too sick” to do his job. The case, Estate of Fajge v. Dick Greenfield Dodge, Inc., was filed on behalf of Henry Fajge, a car salesman for Dick Greenfield Dodge.

The Facts of the Case

Before he started working for the dealership, Mr. Fajge had a history of mini-strokes (or transient ischemic attacks), coronary artery disease and hypertension, and had suffered a heart attack.
Three weeks after he started the job, he suffered another mini stroke. He was taken to the emergency room by ambulance, and remained in the hospital for five days before his doctor cleared him to return to work.

Within a week after he returned to work, the dealership had to call another ambulance for Mr. Fajge because he was not feeling well. After examining him, the paramedics concluded he was fine. According to Mr. Fajge, his boss called him at home the next day, and said he did not think he was strong or healthy enough to continue doing his job, and as a result they were going to have to “part company.” Although his boss denied making that statement, he admitted he called Mr. Fajge to ask him how he was doing. When his boss was asked at his deposition if he calls other employees at home when they are out sick, he answered “No. But most employees don’t like nearly drop over dead in front of me two times in a row in less than a month.”

Approximately two weeks later, the dealership fired Mr. Fajge. It claimed it did so because of his job performance. For example, his supervisors testified that he wasted a lot of time in his office instead of trying to sell cars, and he was often on the internet, including occasionally looking at pornography at work.

Mr. Fajge then filed a lawsuit in which he alleged the dealership fired him because he is disabled, in violation of the New Jersey Law Against Discrimination (LAD). Unfortunately, Mr. Fajge passed away while the case was pending. However, his estate decided to pursue his discrimination lawsuit on his behalf.

The Judge’s Ruling

Without deciding whether Mr. Fajge actually had a disability, the Judge found he was protected by the LAD because the dealership perceived him to be disabled. The LAD prohibits employers from discriminating against employees who they believe are disabled, whether or not they are actually disabled. The Judge also found there was enough evidence for a jury to find the dealership fired Mr. Fajge because it believed he was disabled. This includes Mr. Fajge’s testimony that his boss said he did not think he was strong enough to perform his job, and his boss’s testimony that Mr. Fajge twice nearly dropped dead in front of him. The Judge also relied on a company document that said it fired Mr. Fajge because of his “inability to work the hours required,” and inconsistencies in the dealership’s evidence about Mr. Fajge’s supposed poor performance. The Judge’s ruling paves the way for the case to go to trial, where a jury will decide whether the dealership fired Mr. Fajge because of an actual or perceived disability.

Court Upholds Employee’s Retaliatory Termination Claim Based on Supervisor’s Unfriendliness

July 16, 2012 | by Jonathan I. Nirenberg

In a noteworthy unpublished employment law decision, earlier this month New Jersey’s Appellate Division upheld a jury award to an employee on a retaliation claim where the primary evidence of retaliation was the fact that the employee’s supervisors were unfriendly to him after he complained about discrimination.

Anthony Onuoha, who is African American, worked for Roche Molecular Systems. In 2006, he complained to Roche’s management because he believed the company discriminated against him by giving him unfair performance reviews and raises. The company’s human resources department investigated his claim, but concluded that his performance reviews and salary were fair.

After Mr. Onuoha complained about discrimination, his supervisors became unfriendly toward him. For example, one supervisor stopped speaking to him. Mr. Onuoha also received an even worse performance review in 2007. Further, the company denied Mr. Onuoha’s request to take a two-week vacation after he took a 6-week medical leave, claiming there was too much work.

A few years later, in 2009, Roche chose to include Mr. Onuoha in a reduction-in-force and terminated his employment. He then sued, claiming the company discriminated against him because he is an African American, and fired him in retaliation for his complaint about race discrimination, in violation of the New Jersey Law Against Discrimination (LAD).

After a trial, a jury found that Roche had not discriminated against Mr. Onuoha based on his race. However, it found the company fired Mr. Onuoha in retaliation for the complaint he made about discrimination in 2006. He was awarded $512,000 in economic damages, $250,000 in emotional distress damages, plus $305,653.07 for his attorney’s fees and legal costs, for a total judgment of more than a million dollars.

On appeal, Roche argued it was improper for the jury to find Roche retaliated against Mr. Onuoha because of his complaint about discrimination since the jury found the company did not discriminate against him. In Onuoha v. Roche Molecular Systems, the Appellate Division rejected that argument since an employee does not have to win his discrimination claim to prove his employer fired him in retaliation for complaining about discrimination. Rather, an employee only has to prove he reasonably believed in his discrimination complaint, and the employer retaliated against him because he made the complaint.

The appellate court also found there was enough evidence of retaliation to support the jury’s verdict, despite the fact that there was a two year gap between his discrimination complaint and the company’s decision to fire Mr. Onuoha. It primarily focused on the evidence that Mr. Onuoha’s supervisors became unfriendly toward him after he complained about discrimination. The Court also relied on the fact that, although the company could have considered a broader group of employees for potential layoff, it insisted on firing someone from Mr. Onuoha’s group. Accordingly, the court affirmed the jury’s verdict in favor of Mr. Onuoha.

Discrimination Case Dismissed Because Employee Filed Claim with New Jersey Division on Civil Rights

July 6, 2012 | by Jonathan I. Nirenberg

Last month, New Jersey’s Appellate Division dismissed an employee’s discrimination lawsuit because the New Jersey Division on Civil Rights (DCR) had already dismissed the employee’s case. That employee, Francis Cornacchiulo, was a senior vice president for Alternative Investment Solutions. Mr. Cornacchiulo has multiple sclerosis. Alternative fired him after he apparently started experiencing symptoms of his disability at work. He then filed a disability discrimination claim with the United States Employment Opportunity Commission (EEOC). When Mr. Cornacchiulo submitted additional information to the EEOC, he marked a box agreeing to jointly file his claim with the DCR.

The EEOC eventually told Mr. Cornacchiulo it was “unable to conclude that the information establishes a violation of federal law.” The DCR then wrote a letter to Mr. Cornacchiulo indicating that since the EEOC had closed its file, “a determination has been made” and the DCR was closing its file on the same basis. It did so even though there are important differences between federal and state employment laws, and the DCR had previously informed Mr. Cornacchiulo that, on request, it will review whether the EEOC’s conclusions are consistent with New Jersey law.

After Mr. Cornacchiulo received the letter from the DCR, he filed a lawsuit in a New Jersey state court, claiming Alternative fired him because of his disability in violation of the New Jersey Law Against Discrimination (LAD). Several weeks later, the DCR sent a letter to Alternative’s lawyer stating it was adopting the EEOC’s conclusion and closing Mr. Cornacchiulo’s case. However, the agency never told Mr. Cornacchiulo it had adopted the EEOC’s conclusion.

Alternative then asked the court to dismiss Mr. Cornacchiulo’s lawsuit based on the DCR’s finding. In the meantime, Mr. Cornacchiulo’s lawyer attempted to withdraw his claim from the DCR.

On June 19, 2012, in Cornacchiulo v. Alternative Investment Solutions, L.L.C., the Appellate Division ruled that Mr. Cornacchiulo could not pursue his state law disability discrimination claim in court. The appellate court explained that under the LAD an employee has the option of pursuing a discrimination claim either through the DCR or in court. It also noted that when someone files a case with the DCR, he or she has the option of withdrawing it and filing a private lawsuit. However, he or she has to do so before the DCR reaches its final determination. This is different from determinations by the EEOC, which are not considered final and do not bar a subsequent discrimination lawsuit.

Based on its analysis, the Appellate Division found that the lower court properly dismissed Mr. Cornacchiulo’s lawsuit. It rejected Mr. Cornacchiulo’s arguments based on the fact that he did not realize he had marked the box to file his claim in the DCR, and the EEOC’s form did not warn him of the potential consequences of jointly filing with the DCR. The court ruled that once the DCR reached its final determination, Mr. Cornacchiulo lost his right to bring a separate lawsuit claiming Alternative fired him because he is disabled. However, he still has the option to appeal the DCR’s decision.

The Lesson of the Case

Perhaps the biggest lesson of the Cornacchiulo case is how important it is to speak to an employment lawyer before pursuing your legal rights. For example, although there are some circumstances where it might make sense to pursue a claim through the EEOC or the DCR rather than filing a lawsuit, you should discuss your options with an attorney before you decide which option is best for you.

Rabner Allcorn Baumgart & Ben-Asher’s Discrimination Lawsuit Discussed in Bergen Record

May 11, 2012 | by Jonathan I. Nirenberg

This morning, I was quoted in the Bergen Record about a civil rights lawsuit I recently filed against the Borough of Bogota. Police Officer Regina Tasca alleges Bogota, as well as Police Chief John C. Burke, Captain James L. Sepp, Sergeant Robert Piterski, and Patrolman Jerome Fowler discriminated against and harassed her because she is gay and female. Officer Tasca also alleges the defendants retaliated against her because she spoke out about matters of public concern, and objected to violations of law including her objections to their gender and sexual orientation harassment. Officer Tasca’s case was filed in Federal Court in Newark, New Jersey.

As I discussed here last month, Officer Tasca’s case has received significant media attention. Since I wrote that article, her case has been the subject of numerous stories including:

NJ Town Tries to Fire Lesbian Officer for Stopping Cop Beat Down (WPIX News)
At disciplinary hearing, Bogota officer’s attorney criticizes investigation into 2011 incidents (Bergen Record)
Police video of emotionally disturbed person at heart of Bogota officer’s disciplinary hearing (NJ.com)
Suspended Bogota police officer gets public support (Bogota Bulletin)

Someone has even started an online petition seeking to Reinstate Officer Regina Tasca.

Bogota is currently holding a disciplinary hearing in which it is trying to fire Officer Tasca. The hearing is scheduled to resume on May 15, 16 and 17. The hearing is taking place at the Bogota Borough Hall, at 375 Larch Avenue, Bogota, New Jersey.

New Jersey Prohibits Harassment Based on Mistaken Belief that Employee is Jewish

May 8, 2012 | by Jonathan I. Nirenberg

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.

Police Officer Fights Potential Termination and Prepares for Civil Rights Lawsuit

April 21, 2012 | by Jonathan I. Nirenberg

Over the past few weeks, one of our clients has been in the news. Specifically, Bogota New Jersey Police Officer Regina Tasca is currently in the middle of a disciplinary hearing that will determine whether she will lose her job. Her hearing has received significant media attention.

Officer Tasca is the only female and the only gay member of the Bogota Police Department. She has retained my firm to represent her in a civil lawsuit based on the fact that Bogota engaged in gender and sexual orientation discrimination and harassment toward her, and retaliated against her in violation of her civil rights and the New Jersey Conscientious Employee Protection Act (CEPA). She is waiting for the outcome of her disciplinary hearing before she files her lawsuit.

On April 18, Officer Tasca was interviewed live on the WPIX morning news for the story Officer Regina Tasca On Being Suspended For Not Lying About Fellow Cops’ Actions.

https://www.youtube.com/watch?v=EzqDrp0gvuM

On April 17, 2012 her case was the subject of a story on the WPIX evening news entitled Officer May Be Fired After Stopping Beatdown.

Officer Tasca’s hearing has also been the subject of an article in the Bergen Record. Officer Tasca’s disciplinary hearing is scheduled to resume on April 24, April 25.

EEOC Clarifies Reasonable Factors Other Than Age Defense

April 14, 2012 | by Jonathan I. Nirenberg

On March 29, 2012, the United States Equal Employment Opportunity issued new regulations regarding the Age Discrimination in Employment Act (ADEA). Specifically, the regulations relate to the “reasonable factors other than age” defense to disparate-impact claims. A disparate impact claim is when a company has a policy that appears to be neutral on its face, but in practice it disproportionately harms a legally protected group. A policy that has a disparate impacted based on age violates the ADEA unless it is based on reasonable factors other than age.

Under the new regulations, an employee who claims a company’s policy or practice has a disparate impact based on age is required to identify the specific policy he claims has a disparate impact on older workers. However, the employer has the burden to prove it has a reasonable basis for the policy other than age.

The regulations define “reasonable” to mean that an objectively reasonable employer would conclude the policy (1) is reasonably designed to meet a legitimate business purpose, and (2) was applied in a way that reasonably achieves that purpose. Some of the factors relevant to determining whether a factor on than age is reasonable include:

The extent to which the policy is related to the employer’s stated business purpose;
The degree to which the employer accurately defined and applied the policy, and provided guidance and training to the individuals who will apply it, in order to avoid age discrimination;
The extent to which the employer limited the discretion of supervisors when they apply the policy;
The degree to which the company evaluated the policy’s impact on older employees; and
The extent to which the policy harms older workers in terms of the degree of harm and the number of employees who are harmed; and the degree to which the employer took steps to minimize the harm, compared to the cost of taking those steps

The regulations further clarify that the defense is only available in disparate impact case. It is not available in disparate treatment cases, meaning cases in which an employee claims his employer intentionally discriminated against him because of age.

EEOC Explains When Employers Violate ADA By Requiring High School Diploma

February 22, 2012 | by Jonathan I. Nirenberg

Last week, the United States Equal Employment (EEOC) answered questions about when requiring a high school diploma violates the Americans with Disabilities Act. The EEOC provided this information because it created confusion last November when it issued an informal letter discussing how the ADA applies to standards for job qualifications.

Group of Graduates.jpg Specifically, in November 2011 the EEOC issued a letter which indicates that an employer would violate the ADA if it rejected a job candidate because he does not have a high school diploma if a disability prevented the job candidate from graduating from high school, unless the employer proves the diploma requirement “is job related and consistent with business necessity.” The letter also indicates that an employer would “not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.” The EEOC received substantial backlash to its position, including many who claimed it had created a disincentive to graduate from high school.

The EEOC’s article last week clarifies that the ADA does not prohibit employers from requiring job applicants to have high school diplomas. Rather, under limited circumstances a company might have to allow a job candidate to show he is qualified for the job if a disability made prevented him from graduating from high school. For example, an individual who could not graduate from high school because of a disability might prove he is qualified for a job by showing his work experience in similar jobs.

The EEOC’s article also makes it clear that employers are not necessarily required to hire a job candidate who is disabled. Companies have the right to select the job candidate who is best qualified for the job.

What is still unclear is whether the employer or the employee has the burden of proof when a company rejects a job candidate whose disability prevented him from graduating from high school. The EEOC’s November letter indicates that employers must demonstrate that a high school diploma is necessary for the job. However, its February article indicates that the disabled employee has to prove he is qualified for the job even though he did not graduate from high school. It seems likely the EEOC originally intended to place the burden on the employer, but changed its mind in response to the backlash it received last November.

EEOC Recognizes Pregnancy Discrimination Remains Widespread

February 16, 2012 | by Jonathan I. Nirenberg

Yesterday, the United States Equal Employment Opportunity Commission (EEOC) issued a Press Release regarding pregnancy discrimination in the workplace. The EEOC is a federal agency that helps enforce laws prohibiting employment discrimination claims based on race, color, religion, sex, pregnancy, national origin, age, and disability, as well as related retaliation claims.

The EEOC’s Press Release recognizes that “employers should not make decisions based on stereotypes and presumptions about the competence” of pregnant employees. But even though the federal Pregnancy Discrimination Act was passed more than 30 years ago, and “most pregnant women want and need to work,” pregnancy discrimination continues to be a major problem in the workplace.

The EEOC indicates that women make up 47% of today’s workforce, and are either the primary or co-primary breadwinners in almost two out of every three families. As a result, in the words of the Senior Advisor for the National Partnership for Women & Families, Judith Lichtman, “women cannot afford to lose their jobs or income due to pregnancy or childbirth.”

The Press Release notes that in addition to pregnancy discrimination, both male and female caregivers experience significant discrimination in the workplace. It recognizes that these forms of employment discrimination are becoming bigger problems, and that parents are struggling to balance their obligations at work with their obligations to their families. As I discussed in a previous article, in 2009 the EEOC issued guidelines regarding Discrimination Against Caregivers. The EEOC’s Press Release promises to “vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

Religious Ministers Are Not Protected by Anti-Discrimination Laws

January 12, 2012 | by Jonathan I. Nirenberg

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.