Discrimination

New Jersey Court Analyzes Time Off as Reasonable Accommodation for Disability

October 11, 2023 | by Jonathan I. Nirenberg

Under the New Jersey Law Against Discrimination (“LAD”), time off can be a reasonable accommodation for a disability as long as the time off sought is reasonable. A recent decision from the District of New Jersey provides a good example of how Courts analyze this issue at the early stage of a case, as well as a dispute about the employee’s ownership interest in the business.

Michaela Wark worked for J5 Consulting, LLC as a senior consultant in New Jersey. In June 2020, Michael Johnson, who is the Chief Executive Officer and an owner of J5, told Ms. Wark that he was promoting her to a Partner of J5 and making her a 5% owner of the company.

Mr. Johnson provided Ms. Wark a letter confirming her promotion and 5% ownership, which states that she would lose her ownership rights if she was “fired for gross negligence or misconduct.” The letter also say Ms. Wark “must be employed by the company six months prior to sale for the rights of ownership to apply.”

Catholic School Did Not Violate Law Against Discrimination by Firing Unmarried Employee When She Got Pregnant

August 16, 2023 | by Jonathan I. Nirenberg

The New Jersey Supreme Court recently ruled that religious institutions can fire an employee for failing to follow the tenets of their religions, such as a Catholic school firing an employee because she had premarital sex.

Victoria Crisitello worked for the St. Theresa School as an art teacher and toddler room caregiver. St. Theresa’s requires its employees, including Ms. Crisitello, to sign employment agreements that require them to follow the teachings of the Catholic Church. For example, they had to agree to follow the Policies on Professional and Ministerial Conduct adopted by the Archdiocese of Newark.

Among other things, those Policies forbid engaging in “[a]dultery, flagrant promiscuity or illicit co-habitation.” Similarly, the Roman Catholic Church prohibits sex outside of marriage, which the Church considers to be a sin.

New Federal Protections for Pregnant Employees

July 22, 2023 | by Jonathan I. Nirenberg

Reasonable Accommodations for Pregnancy and Childbirth

On June 27, 2023, a new federal employment law, the Pregnant Workers Fairness Act, went into effect. The Act prohibits employers from:

Denying an employee a reasonable accommodations for pregnancy, childbirth, and related medical conditions unless the employer can show the accommodation would impose an undue hardship on the operation of its business;

Supreme Court Makes it Easier to Receive Accommodations for Religious Beliefs

July 11, 2023 | by Jonathan I. Nirenberg

Last month, the United States Supreme Court made it easier for employees to prove a claim that their employer failed to accommodate an employee’s religious beliefs under Title VII of the Civil Rights Act of 1964.

Gerald Groff worked for the United States Postal Service (“USPS”). Mr. Groff is an Evangelical Christian whose religious belief is that Sunday should be a day for worship and rest, rather than for work or transporting worldly goods.

Initially, Mr. Groff’s job as a Rural Carrier Associate generally did not require him to work on Sundays. However, in 2013, after USPS entered into an agreement with Amazon, it began requiring employees to make Sunday deliveries. Accordingly, Mr. Groff requested a transfer to another location that did not make deliveries on Sundays.

Following Merger, Employer Can Be Liable for Not Offering Job to Employee on Medical Leave

June 27, 2023 | by Jonathan I. Nirenberg

A recent decision by the Appellate Division recognizes that, under the right circumstance, an employee can establish an employment discrimination claim under the New Jersey Law Against Discrimination (“LAD”) after her employer was acquired by another company, even though she did not apply for a job with the acquiring business.

Rosemary Beneduci worked as a bookkeeper for a law firm, Graham Curtin, P.A., for almost 30 years. In 2017, when she was 66 years old, Ms. Beneduci took two medical leaves due to problems with her knees.

In the meantime, Graham Curtin began the process of closing the firm. The firm’s managing partner, Peter Laughlin, eventually reached an agreement to merge with another law firm, McElroy, Deutsch, Mulvaney & Carpenter, LLC (“McElroy”). McElroy agreed to make Mr. Laughlin a partner as part of the merger.

When Are Employers Liable for Harassment Toward Customers?

December 12, 2022 | by Jonathan I. Nirenberg

A new ruling from the Appellate Division addresses when an employer can be liable for unlawful harassment by one of its employees toward a customer or patron.

The case was brought by Darien Cooper, who is gay. Mr. Cooper received a massage at Rogo Brothers, Inc., which does business under the name Elements Massage (“Elements”). The masseuse, Justine Middleton, asked Mr. Cooper about a tattoo on his arm. During their ensuing conversation, Ms. Middleton told Mr. Cooper that she is Christian. When Mr. Cooper later referred to his boyfriend, Ms. Middleton made demeaning and discriminatory comments about homosexuality. For example, she told Mr. Cooper that gays “do not follow God’s design,” compared being gay with pedophilia, and implied she believes being gay is a choice. Mr. Cooper found these comments humiliating.

Mr. Cooper sued Elements, alleging it engaged in sexual orientation discrimination against him in a “place of public accommodation,” in violation of the New Jersey Law Against Discrimination (“LAD”). In addition to prohibiting workplace discrimination, the LAD also prohibits discrimination in places of public accommodation, such as a “retail shop, store, establishment, or concession dealing with goods or services of any kind.” As a result, places like Elements cannot discriminate against their customers based on their sexual orientation (or, for that matter, based on their race, creed, color, national origin, ancestry, marital status, civil union status, domestic partnership status, sex, gender identity or expression, disability or nationality).

Court Permits Starbucks Reverse Discrimination Claim to Proceed

October 11, 2022 | by Jonathan I. Nirenberg

A recent decision by the District of New Jersey allows an employee’s reverse race discrimination claim to proceed to a trial.

Shannon Phillips worked for Starbucks Corporation for 13 years, most recently as a Regional Director of Operations. In April 2018, a Caucasian store manager within Ms. Phillips’ district called the police to a Starbucks store where two African American men were in the store, but had not made a purchase. The two men were arrested.

This racial profiling incident received national media attention, and resulted in protests outside the store where it occurred. In response, Starbucks publicly vowed to take actions “to repair and reaffirm our values and vision for the kind of company that we want to be.”

Rutgers Women’s Basketball Players Win Appeal in Discrimination Lawsuit

June 23, 2022 | by Jonathan I. Nirenberg

A recent ruling from New Jersey’s Appellate Division allows members of the Rutger’s women’s basketball team to continue with their lawsuit under the New Jersey Law Against Discrimination (“LAD”).

Sharee Gordon, Adayshia McKinnon, Jade Howard, Arianna Williams and Sarah Schwartz were students at Rutgers-Newark University and members of the women’s basketball team. Gordon, Howard and Williams each identify themselves as African-American lesbians; McKinnon identifies as Black and bisexual; and Schwartz identifies as Hispanic and heterosexual.

During the 2014-15 school year, the team’s head coach, Kevin Morris, was on a medical leave. When Gordon learned Rutgers was considering naming William Zasowski as the interim head coach, she raised concerns that he had used discriminatory language to refer to members of the men’s basketball team when he was its assistant coach. Specifically, she alleged he referred to members of the men’s team as “p*ssies,” “b*tches,” and “retard[s]” and asked if they were on their “period.” Rutgers nonetheless selected Zasowski as the interim head coach.

Non-Disparagement Clauses Do Not Violate New Jersey Law Against Discrimination

June 6, 2022 | by Jonathan I. Nirenberg

Last week, in Savage v. Township of Neptune, the Appellate Division ruled that a 2019 amendment to the New Jersey Law Against Discrimination (“LAD”) does not prohibit parties from entering into non-disparagement clauses.

The Appellate Division’s opinion involved Christine Savage, a Sergeant for the Township of Neptune Police Department. Sgt. Savage brought an employment discrimination case against Neptune, Police Director Michael J. Bascom, Police Chief James M. Hunt, in which she alleged they engaged in sexual discrimination, harassment, and retaliation in violation of the LAD, the New Jersey Civil Rights Act (“NJCRA”), and the free speech provision of the New Jersey Constitution.

Sgt. Savage eventually settled her case. The settlement agreement included a mutual non-disparagement provision which prevented the parties from making any statements “regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.”

When Can an Employer Require a Fitness for Duty Exam?

May 16, 2022 | by Jonathan I. Nirenberg

As a New Jersey employment lawyer, I have had numerous clients tell me their employer has asked or required them to undergo a fitness-for-duty examination. However, anti-discrimination laws limit when an employer has the right to send an employee to a medical exam.

Protection Under Anti-Discrimination Laws

The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) both prohibit employers from sending employees for a fitness-for-duty exam unless the exam is “job-related” and “consistent with business necessity.”