Discrimination

New Jersey Court Reinstates Employee’s Failure to Accommodate Religious Belief Claim

January 26, 2011 | by Jonathan I. Nirenberg

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.

Mr. 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In an unpublished opinion, Sepulveda v. Borne Holding Co., Inc., the Appellate Division found the trial court should not have dismissed Mr.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.

“Discovery Rule” Can Extend Statute of Limitations Under New Jersey Law Against Discrimination

December 15, 2010 | by Jonathan I. Nirenberg

The statute of limitations under the New Jersey Law Against Discrimination (“LAD”) is two years. Ordinarily, that means you must file your lawsuit within two years after (1) a “discrete act” of discrimination such as being fired, demoted, or suspended, or (2) the last act of a pattern of harassment. But on December 10, 2010, the New Jersey Supreme Court ruled that an exception called the “discovery rule” can extend the LAD’s statute of limitations. The discovery rule applies when an employee is unaware that he suffered an injury, or unaware that someone else is at fault for causing his injury, until after the statute of limitations has expired.

The case, Henry v. New Jersey Department of Human Services, involves an African American employee, Lula Henry, who was hired for an entry-level nursing position with Trenton State Psychiatric Hospital in April 2004. Ms. Henry claims Trenton State did not place her in a more senior position because of her race, in violation of the LAD.

According to Ms. Henry, she first suspected she was the victim of race discrimination in 2004, but did not have any concrete evidence at the time. It was not until 2006 that she learned that (1) another black nurse had filed a race discrimination lawsuit against Trenton State, and (2) Trenton State had hired a Caucasian nurse with the same credentials as her for higher level job classification, which was inconsistent with Trenton State’s explanation for why it did not place her in a higher level position.

In July 2007, Ms. Henry filed a race discrimination lawsuit against the New Jersey Department of Human Services, its Acting Commissioner, Trenton State Psychiatric Hospital, and Trenton State’s Chief Executive Officer. The trial court dismissed her case based on the statute of limitations since she filed her case more than two years after the alleged discriminatory actions. On appeal, the New Jersey Appellate Division affirmed the dismissal of her case.

But the New Jersey Supreme Court disagreed. It found the fact that Trenton State gave Ms. Henry a non-discriminatory explanation for why it placed her in an entry-level position may have led her not to pursue the issue until she learned new information that caused her to believe Trenton State’s explanation was false. It found the circumstances could be enough that the LAD’s two year statute of limitations would not begin until Ms. Henry learned the new information that supported her suspicion that Trenton State had discriminated against her because of her race. As a result, it sent her case back to the trial court to conduct a hearing. At that hearing, Ms. Henry will try to prove she did not have a “reasonable suspicion” of race discrimination, and that a reasonable person in her position could not have discovered a basis for a discrimination claim through reasonable diligence. If she is able to prove this, then she will be able to proceed with her discrimination case even though she filed it more than two years after the alleged discrimination occurred.

Each Discriminatory Paycheck is Separate Violation of New Jersey Law Against Discrimination

December 2, 2010 | by Jonathan I. Nirenberg

Last week, the New Jersey Supreme Court ruled that each day an employee is paid a lower salary based on a past unlawful discriminatory decision is a separate violation of the New Jersey Law Against Discrimination (LAD). As a result, three tenured Seton Hall University professors can proceed with their age and gender discrimination lawsuit, even though (1) the alleged discriminatory decision was made more than two years before they filed the lawsuit, and (2) the LAD has a two-year statute of limitations.

Specifically, in Alexander v. Seton Hall University, three female professors who are over 60 years old sued Seton Hall and certain school officials. They claim they were paid less than their younger male colleagues. They largely based their claims on the University’s 2004-2005 annual report, which shows that Seton Hall pays higher salaries to younger male faculty members than older female faculty members.

However, the trial court dismissed the case, ruling that since the allegedly discriminatory decision was made more than two years before the employees sued, their case was barred by the statute of limitations. That decision was affirmed by New Jersey’s Appellate Division. Both courts relied on the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which ruled that the statute of limitations for claims of discriminatory wages under federal law begins when the employer makes the discriminatory decision.

EEOC Sues Port Authority of NY & NJ for Sex and Age Discrimination

November 26, 2010 | by Jonathan I. Nirenberg

The United States Equal Employment Opportunity Commission (EEOC) recently sued the Port Authority of NY & NJ, claiming the Port Authority violated the Equal Pay Act (“EPA”) by paying non-supervisory female lawyers less than their male counterparts. The EPA is a federal law that prohibits employers from considering gender as a basis for paying employees different wages for the same work. The lawsuit also alleges that the Port Authority violated the Age Discrimination in Employment Act (“ADEA”) by firing older attorneys and replacing them with younger attorneys. The ADEA is a federal law that prohibits age discrimination in employment.

According to the EEOC’s press release, the Port Authority paid male attorneys more than female attorneys for work requiring the same skill, effort and responsibility. The EEOC claims the gender pay disparity occurred regardless of the attorney’s job assignment, years of service, or date of admission to the bar.

The allegations stem from the Port Authority’s decision to fire two female attorneys over the age of 40 as part of a purported “reduction in force.” Earlier this year, the EEOC attempted to reach an amicable settlement with the Port Authority, but those efforts failed. It then filed the lawsuit in the United States District Court for the Southern District of New York.

As Louis Graziano, the attorney handling the case for the EEOC, stated:

Achieving a work force that embodies equal pay for equal work and eliminates sex-based pay discrimination has been the objective of federal law for nearly 50 years. This lawsuit makes it clear that the unfortunate reality – that at some workplaces women still earn less than men, even though they are performing the same work and have the same qualifications – continues to plague the workplace and will not be tolerated.

New York Employers Must Provide Same Bereavement Leave to Same-Sex Committed Couples

October 29, 2010 | by Jonathan I. Nirenberg

New York State law does not require employers to allow employees to take time off for bereavement leave. However, under New York’s new funeral and bereavement leave law, when a company does allow employees to take time off for the death of a spouse, or for the child, parent or other relative of their spouse, they also must offer the same bereavement leave to employees for the death of their same-sex committed partner, and for the child, parent or other relative of the employee’s same-sex committed partner.

Signed by Governor Patterson on August 31, 2010, this new law is an addition to New York’s Civil Rights Law. It defines “same-sex committed partners” as couples that are “financially and emotionally interdependent in a manner commonly presumed of spouses.” The law goes into effect today, October 29, 2010.

New York’s funeral and bereavement leave law was passed because individuals in same-sex relationships historically have been denied the right to civil marriage, and are often denied the right to bereavement leave to attend the funeral of their partners and their partners’ blood relatives. The New York State Senate and Assembly concluded that this failed to recognize the value that any committed relationship contributes to our communities. The Legislature also concluded that “enlightened companies with domestic partnership policies now allow this type of funeral or bereavement leave.”

New Jersey Supreme Court Agree It’s Illegal Not to Renew Contract Because Employee Is Over 70 Years Old

August 25, 2010 | by Jonathan I. Nirenberg

In June 2009, I discussed the New Jersey Appellate Division’s age discrimination ruling that it is illegal for an employer not to renew an employment contract because the employee is over 70 years old. The New Jersey Supreme Court recently agreed, and affirmed the Appellate Division’s decision.

Specifically, in Nini v. Mercer County Community College, New Jersey’s highest court ruled that a company’s decision not to renew an employment contract is more like firing a current employee than deciding not to hire a job candidate. As a result, the Court concluded that even though the New Jersey Law Against Discrimination (LAD) allows employers to refuse to hire employees because they are over 70 years old, that exception does not apply when a company decides not to renew an employee’s contract after he or she turns 70.

In explaining its decision, the New Jersey Supreme Court stated that the purpose of the LAD is to protect New Jersey citizens “from all forms of discrimination in employment and, in particular, to protect our older citizens from being forced out of the workplace based solely on age.” It also indicated that the over 70 exception is meant to allow employers to avoid the cost of training new employees who have “limited long-term prospects.” However, that does not apply to an employee who already has been working for the company and does not need training.

Court Clarifies When Non-Residents Are Protected Under New York’s Anti-Discrimination Laws

August 10, 2010 | by Jonathan I. Nirenberg

In an article I wrote last May, Employees Working in Other States Can Sue Under New York’s Anti-Discrimination Laws, I discussed Hoffman v. Parade Publications. In that age discrimination case, New York’s mid-level appellate court ruled that the New York City Human Rights Law (NYCHRL) applies to non-residents of NYC if the discriminatory decision was made in NYC. It also ruled that the New York State Human Rights Law (NYSHRL) applies to non-residents of NYC if the discriminatory employment decision was made in New York State. However, last month New York’s highest court, the Court of Appeals, reversed that decision and set a new standard.

The Court of Appeals ruled that for the NYSHRL to apply, the employee bringing the discrimination lawsuit must either be a resident of New York State, or show that the impact of the discrimination was felt within New York State. Likewise, it ruled the NYCHRL applies only if the victim of discrimination is a resident of New York City, or the impact of the discrimination was felt in New York City.

The Court of Appeals did not explain what kind of “impact” is necessary for the NYCHRL or the NYSHRL to apply to a non-resident. Presumably, New York law protects employees who primarily work in New York, no matter where they live. However, the Court of Appeals found Mr. Hoffman, who lived and worked in Georgia, was not protected by the NYSHRL or the NYCHRL even though his boss supervised him, made the decision to fire him, and called to fire him, all from the company’s headquarters in New York City. In other words, the court found those facts were not enough to show the discriminatory employment decision had an “impact” on New York.

Even More Ways to Prove Workplace Discrimination

July 26, 2010 | by Jonathan I. Nirenberg

The Timing of the Employer’s Decision

In some instances, the timing of an employment decision can help prove it was discriminatory. While this most frequently comes up in retaliation cases, it also arises in some types of employment discrimination cases. For example, if your boss starts treating you worse soon after you announce you are pregnant, or fires you when you try to return from a maternity leave, that might help prove gender and pregnancy discrimination. Similarly, if your employer demotes or fires you for no good reason after you request time off because of a medical condition, that could help support a disability discrimination claim.

Documents and Witnesses

Additional Ways to Prove Employment Discrimination

July 19, 2010 | by Jonathan I. Nirenberg

The Employer’s Pattern of Discrimination

In addition to the topics discussed in my previous article, How Do I Prove Employment Discrimination? (discriminatory statements of the employer and evidence the employer’s explanation is false), you also might be able to help prove discrimination by a pattern of discrimination. In other words, you can support your discrimination claim if you can show that your company tends to treat people of your race, gender, age, or other legally protected category worse than other employees.

For example, if the last three employees the company fired were in their 60’s, that could support your age discrimination claim. Or, if the company you worked for had a mass layoff or reduction in force, and a significantly greater percentage of African American or Hispanic employees were laid off than the percentage of African American or Hispanic employees at the company, then that could help prove you were the victim of race discrimination.

How Do I Prove Employment Discrimination?

July 10, 2010 | by Jonathan I. Nirenberg

State and federal employment laws in both New York and New Jersey make it illegal for employers to discriminate against employees because of their age, race, gender, pregnancy, disability, color, national origin, sexual orientation, or veteran/military status. But how do you prove your employer’s actions were discriminatory?

The Employer’s Discriminatory Statements

If the employee who took a discriminatory action toward you made discriminatory comments or jokes, then that can help show the decision to fire, demote, or take another adverse employment action against you was discriminatory. Similarly, if your boss called you or other employees in your protected group discriminatory names, that could help support a claim of discrimination. The closer in time the discriminatory comments were to the adverse employment decision, and the more related they were to the adverse decision, the better.