Discrimination

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.”

Requiring Employee to Seek Another Job is an Adverse Employment Action

March 13, 2022 | by Jonathan I. Nirenberg

A recent case recognizes that an employer’s decision to remove an employee from her job and give her an opportunity to search for another position within the company is an adverse employment action. In other words, if it is done for a discriminatory reason, doing so can violate the New Jersey Law Against Discrimination (“LAD”).

Kathleen Fowler, who has epilepsy and is a cancer survivor, worked for AT&T for 30 years and is over 60 years old. In December 2015, AT&T announced a plan to reduce the Technology Planning and Engineering business unit for which Ms. Fowler worked by eliminating numerous positions. AT&T placed the employees impacted by this reduction in force on “surplus status,” meaning they were given the choice to accept a severance package and leave the company, or remain employed for 60 days to search for another job within AT&T. If an employee on surplus status was not offered another position within those 60 days, then she would receive the severance benefits.

Ms. Fowler elected to go onto surplus status. During that period, she was offered two positions, one in New Jersey and the other in Texas. Even though she was better qualified for the position in Texas, Ms. Fowler accepted the job as a senior system engineer because it was in New Jersey and she did not want to interrupt her cancer treatment.

NYC Job Ads Soon Must Specify Salary Ranges

February 1, 2022 | by Jonathan I. Nirenberg

Starting soon, most job advertisements in New York City will be required to list the salary range for the job.

More specifically, the failure to include salary range information in a job posting will be unlawful discrimination in violation of the New York City Human Rights Law (“NYCHRL”). To comply with the law, the salary range must not go beyond what the employer believes, in good faith, is the range it would pay someone for the job at the time of the job posting.

In most respects, the law will apply only to employers of at least four employees during the prior year, including independent contractors who are working “in furtherance of an employer’s business enterprise.” However, when there is a claim of gender harassment, then the requirement will apply to employers of all sizes.

Employers Can be Liable for Employment Decision Tainted by Subordinate’s Discrimination

January 5, 2022 | by Jonathan I. Nirenberg

The New Jersey Supreme Court recently recognized that an employer can be held liable for discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) based on an employment decision that was influenced by a subordinate’s discriminatory animus, whether or not the subordinate intended to get the employee fired.

Michele Meade was the Township Manager for Livingston Township. She was involved in disciplining Police Chief Craig Handschuch and Police Sergeant Kenneth Hanna for their failure to alert the Livingston Community Center about training exercises being conducted in the Center’s parking lot by the Emergency Services Unit (“ESU”). As a result, when someone spotted a man wearing camouflage and carrying a rifle bag in the parking lot, the Community Center locked down three preschool classes, and the Police Department dispatched two detectives to the scene.

Following the incident, Sergeant Hanna filed a criminal complaint against Ms. Meade, claiming she violated the law by using “unreasonably loud and offensive coarse or abusive language” when she publicly addressed him about the incident, including by asking him “what kind of f—ing operation are you running here?” Sgt. Hanna filed a second criminal complaint in which he alleged Ms. Meade had “purposely com[e] into physical contact with officers and civilians in an attempt to obstruct and stop an authorized ESU training exercise.” Ms. Meade eventually was acquitted of both charges.

New Jersey Requires Hiring Preferences for Employees Terminated Due to Workplace Injury

November 2, 2021 | by Jonathan I. Nirenberg

New Hiring Preference

A recent amendment to the New Jersey Workers’ Compensation statute now requires many employers to give a hiring preference to employees who lose their jobs as a result of a workplace injury.

More specifically, the worker’s compensation statute now requires employers to provide a “hiring preference” to employees who have reached “maximum medical improvement” after a work-related injury and cannot return to their former job, for “any existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.”