Discrimination

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.”

New Jersey Law Amended to Increase Protection Against Age Discrimination

October 14, 2021 | by Jonathan I. Nirenberg

Older worked forced to retire

New Jersey has an extremely broad anti-discrimination law, the New Jersey Law Against Discrimination (“LAD”). The LAD became even broader last Tuesday, October 5, 2021, when Governor Phil Murphy signed into law a new amendment that increases the statute’s protections against age discrimination by removing several loop holes and exceptions.

More specifically, the amendment makes four changes to the LAD:

New Jersey Law Against Discrimination Permits Punitive Damages Against State and the Local Government

August 23, 2021 | by Jonathan I. Nirenberg

Earlier this month, in Pritchett v. State, the New Jersey Supreme Court confirmed that the state of New Jersey and municipalities remain subject to punitive damages under the New Jersey Law Against Discrimination (“LAD”).

Shelley Pritchett worked for the State of New Jersey as a Senior Corrections Officer at the Juvenile Justice Center (“JJC”). In 2011, Officer Pritchett suffered back, knee and neck injuries when she broke up a fight between two inmates. She went on a workers’ compensation leave as a result. Her doctor subsequently diagnosed her with multiple sclerosis. As a result, she sought to extend her medical leave by approximately 4 ½ months. However, the JJC denied her request, and instead offered to extend her leave by only about a month and told her that if she was not medically cleared to return to work by then she would have to resign.

Officer Pritchett was unable to return to work within the additional time JJC had granted. However, she told the JJC she did not want to resign. In response, JJC told her that if she did not resign by the end of the week, it would initiate disciplinary proceedings to fire her, and she would lose her pension. In response, Officer Pritchett applied for a disability retirement.

Lack of Evidence of Alleged Corporate Restructuring Can Prove Discrimination

July 2, 2021 | by Jonathan I. Nirenberg

A recent decision from the District of New Jersey concludes that, when an employer claims it fired an employee as part of a corporate restructuring, but has no documents to prove there was a restructuring, can be enough to prove age discrimination in violation of New Jersey law.

In 2014, Talbird Reeves Sams began working for Pinnacle Treatment Centers, Inc. His job was to find new locations for new facilities, and to help Pinnacle open those facilities.

In 2016, Pinnacle’s Chief Development Officer, Robert O’Sullivan, told Mr. Sams that his position was being eliminated due to “corporate restructuring” and his employment was being terminated as a result. At that time, Mr. Sams was 58 years old.

New Jersey Supreme Court Finds Adverse Action Not Required for Failure to Accommodate Claim

June 8, 2021 | by Jonathan I. Nirenberg

Today, the New Jersey Supreme Court ruled that an employee does not need to suffer an adverse employment action to win a claim based on the employer’s failure to accommodate her disability under the New Jersey Law Against Discrimination (“LAD”).

Mary Richter is a teacher for the Oakland Board of Education. Ms. Richter has Type 1 diabetes. She repeatedly asked the school principal to allow her to change her schedule so she could eat lunch earlier to help her manage her blood sugar levels. However, the school did not accommodate her an accommodation for her diabetes.

Ms. Richter subsequently experienced a hypoglycemic event in a classroom. As a result, she fainted, hit her head on a table, and sustained very serious permanent injuries, including:

Age Discrimination Lawsuit Need Not Specify Replacement’s Age

May 13, 2021 | by Jonathan I. Nirenberg

An employee bringing an age discrimination claim does not need to state the age of the individuals who replaced him in the lawsuit. Rather, at that early stage, it is sufficient to assert that his replacement was “significantly younger” than him.

That was the ruling of the Third Circuit Court of appeals earlier this year. The Third Circuit is a court that handles appeals from the District of New Jersey.

The case was brought by Zeferino Martinez, M.D., an orthopedic surgeon. Dr. Martinez’s former employer, UPMC Susquehanna, fired him in 2017. At the time, Dr. Martinez was 70 years old.

Pregnant Workers Fairness Act Explained by New Jersey Supreme Court

April 30, 2021 | by Jonathan I. Nirenberg

Last month, the New Jersey Supreme Court addressed the New Jersey Pregnant Workers Fairness Act (“PWFA”) for the first time. The PWFA is an amendment to the New Jersey Law Against Discrimination (“LAD”) that prohibits pregnancy discrimination.

Kathleen Delanoy is a police officer. She filed a lawsuit in which she alleged her employer, the Township of Ocean, discriminated against her because she was pregnant. However, the trial court dismissed her case on a motion for summary judgment.

As discussed in my previous article, Appellate Court Recognizes Employers Must Accommodate Pregnancy, the Appellate Division subsequently reversed that ruling. Ocean Township asked the New Jersey Supreme Court to review that decision.