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.

Nursing Mothers Finally Get a Break

June 28, 2010 | by Jonathan I. Nirenberg

Earlier this year, President Obama signed a law which requires employers to provide reasonable break time for nursing mothers. This new employment law right is part of the Patient Protection and Affordable Care Act. It amends the Fair Labor Standards Act of 1938 (FLSA), a federal law which requires employers to pay minimum wage to most employees, and overtime pay to most employees who work more than 40 hours per week.

The new law requires companies to give nursing mothers breaks each time the employee needs to express milk. It applies for up to one year after the birth of a child. However, employers are not required to pay employees during these breaks.

Employers also must give nursing mothers a place that is hidden from view and free from intrusion from other employees or the public. The law specifically says that the place cannot be a bathroom.

Supreme Court Clarifies Filing Deadline for Disparate Impact Cases

June 1, 2010 | by Jonathan I. Nirenberg

What is a Disparate Impact Case?

On May 24, 2010, the United States Supreme Court decided another employment law case. Specifically, in Lewis v. City of Chicago, the Supreme Court clarified how to determine if an employee has met the filing deadline to bring a “disparate impact” discrimination case under federal law.

A disparate impact case is one in which an employee claims the employer’s policy has an unequal negative impact based on an unlawful reason. Unlawful factors include race, national origin, gender, age, pregnancy or disability among others.

For example, an employer might use a test to decide which employees it hires or promotes. Even if the employer has no intent to discriminate, the test might disproportionately select fewer employees in a legally protected group. For example, if a significantly lower percentage of African-American or Hispanic job candidates are hired or promoted based on the test results, then the test might be considered to have a disparate impact based on race. A job criteria that has a disparate impact based on an illegal factor violates the law unless the company can prove it has a “business necessity” for using the criteria.

Side Effects of Medication Can Constitute a Disability under the ADA

May 14, 2010 | by

In a recent federal employment law decision, the Third Circuit Court of Appeals ruled that side effects of medication or other medical treatment can constitute an impairment within the meaning of the Americans with Disabilities Act (ADA). The ADA is a federal law which prohibits employers from discriminating against employees because they are disabled.

To be protected by the ADA, an employee must prove he has a disability, as defined by the statute. Usually, an employee proves he is disabled by showing that his disability substantially limits his ability to perform a major life activity. Major life activities include caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

In Sulima v. Tobyhanna Army Depot, the Third Circuit ruled that employees can also prove they are disabled by showing that the effects of their medication or other medical treatment substantially impair a major life activity.

New Jersey Law Against Discrimination Clarified to Include Autisim as Disability

February 21, 2010 | by Jonathan I. Nirenberg

Earlier this year, New Jersey amended its Law Against Discrimination to expressly include “autism spectrum disorders” in its definition of disability. This means it is unlawful for New Jersey employers to discriminate against employees because they are autistic, unless the company can show that the autistic employee cannot perform the essential functions of his or her job, even with a reasonable accommodation. It also means that employers must provide reasonable accommodations for employees who are autistic.

The Law Against Discrimination prohibits employers from discriminating against employees because they belong to legally protected categories. In addition to disabilities, other legally protected categories include age, race, national origin, gender, pregnancy, and religion.

This amendment to the New Jersey Law Against Discrimination was based on an October 8, 2009 report from the Adults with Autism Task Force.

New Jersey Court Finds Emphatic Response to Discriminatory Remark Can Be Legally Protected

January 23, 2010 | by Jonathan I. Nirenberg

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

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

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

When Do Employers Violate the ADA By Discriminating Against Employees With Disabled Relatives?

November 1, 2009 | by Jonathan I. Nirenberg

In two previous articles, I discussed important rulings the Third Circuit Court of Appeals made in Erdman v. Nationwide Insurance Company regarding the Family & Medical Leave Act (FMLA). Specifically, that case rules that an employee’s time worked from home counts toward the FMLA’s 1,250 hour eligibility requirement if the employer knew or should have known the employee was working off-site, and that an employee who requests an FMLA leave is legally protected even if he never actually takes a leave. But Erdman also makes an important ruling regarding another, the Americans with Disabilities Act (ADA).

The ADA is a federal law that prohibits employers from discriminating against employees on the basis of a disability. It includes a provision prohibiting employers from discriminating against individuals because they have a relationship or association with someone who has a disability. For example, it prohibits employers from discriminating against an employee who has a disabled child.

As Erdman notes, although the ADA requires employers to make reasonable accommodations to allow employees to perform the essential functions of their jobs, it does not require employers to accommodate employees who have a disabled relative. As a result, employers can refuse to provide an employee time off to care for a disabled relative without violating the ADA. Of course, doing so could violate the FMLA or a state law such as the New Jersey Family Leave Act.

New York Human Rights Law Amended to Prohibit Discrimination Against Victims of Domestic Violence

September 5, 2009 | by Jonathan I. Nirenberg

Earlier this year, New York State Gov. David Paterson signed a law that amends the New York Human Rights Law to prohibit employers from discriminating on the basis of an individual’s status as a victim of domestic violence. As a result, it is now unlawful for employers in New York State to fire, refuse to hire, harass, or otherwise discriminate against employees with respect to the terms, conditions, or privileges of employment, because they have been the victim of an act of domestic violence, including stalking.

The sponsor of the statute in the New York State Assembly, Westchester County Assemblywoman Amy Paulin, noted that “financial security is one of the most import factors in whether a victim of domestic violence will be able to separate from an abusive partner.” Paulson also indicated that this new law “will help victims [of domestic violence] maintain their jobs without fear of unfair termination.”

In addition to now prohibiting employers from discriminating on the basis of status as a victim of domestic violence, the New York Human Rights Law also prohibits discrimination based on an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status.

Inadequate Sexual Harassment Investigation Can Help Support Discrimination Claim By Alleged Harasser

August 3, 2009 | by Jonathan I. Nirenberg

On May 22, 2009, in the case of Sassaman v. Gamache, Commissioner, Dutchess County Board of Elections, the United States Court of Appeals for the Second Circuit reinstated the gender discrimination claim of an employee who was forced to resign because another employee accused him of sexual harassment. The Second Circuit is the federal appellate court that covers several states, including New York.

The plaintiff in that case, Carl Thomas Sassaman, worked for the Dutchess County Board of Elections. In March 2005, another Board of Elections employee, Michelle Brant, accused Mr. Sassaman of harassing and stalking her. Mr. Sassaman denied harassing Ms. Brant. He also claimed that she had previously asked him if he was interested in a one-time sexual encounter with her, which he declined.

When Ms. Brant complained about the sexual harassment, the Commissioner of the Board of Election, David Gamache, suggested that Ms. Brant file a complaint with the Dutchess County Prosecutor’s office. The Prosecutor’s office subsequently found insufficient proof that Mr. Sassaman had enaged in a crime.

After-Acquired Evidence Inadmissible Until After Jury Finds Wrongful Termination

June 18, 2009 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division ruled that it is improper to present a jury with evidence regarding “after-acquired evidence” until after it has determined that an employer violated New Jersey’s Conscientious Employee Protection Act (CEPA). CEPA is New Jersey’s whistleblower law.

After-acquired evidence is when a company learns during a discrimination or retaliation lawsuit that the employee did something while he worked for the company that would have been grounds for firing him. If the employer can prove it would have fired the employee based on the new evidence, the employee’s damages for lost salary and benefits are cut off from the date on which the employer learned the new information.

Even when it applies, the after-acquired evidence defense does not prevent an employee from proving a wrongful termination claim, does not impact damages for salary and benefits the employee lost before the employer discovered the wrongdoing, and does not limit damages for emotional distress damages in any way. It only cuts off damages for lost salary and benefits starting from the date on which the employer discovered the new information.