Discrimination

Termination Three Weeks After Medical Leave Supports Disability Discrimination Claim

May 1, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division demonstrates that under the right circumstances an employee can prove disability discrimination from the fact that her employer fired her shortly after she had surgery.

Ada Caballero worked for Cablevision Systems Corporation for 15 years. In 2013, she was divorced. A few months after her divorce was finalized, Ms. Caballero submitted a copy of the divorce judgment to the company’s human resources department. However, Cablevision did not remove her ex-husband from its health insurance plan.

On Ms. Caballero’s 2014 performance evaluation, Cablevision gave her a rating of “strong performance.”

Close Enough? Who is “Similarly Situated” Under New Jersey Law Against Discrimination?

April 17, 2019 | by Jonathan I. Nirenberg

A recent decision by the Third Circuit Court of Appeals helps clarify who is a “similarly situated” employee in discrimination cases under the New Jersey Law Against Discrimination (“LAD”). This is important since one way to prove discrimination is by showing the employer treated other similarly situated employees more favorably than the employee who is claiming he or she was the victim of discrimination.

Santos Andujar worked for General Nutrition Corporation (“GNC”) as a store manager for 13 years. After failing the company’s Critical Point Audits four years in a row, he received a failing score through the company’s Performance Evaluation Process (“PEP”). On the day Mr. Andujar received his failing PEP score, GNC placed him on a “Red Store Action Plan” which gave him days to improve his job performance. Approximately one month later, the company fired him for failing to meet the Action Plan. GNC replaced Mr. Andujar, who was 57 years old, with someone in his twenties. Mr. Andujar then filed a lawsuit alleging that GNC had engaged in age discrimination in violation of the LAD.

The case went to trial. GNC argued that it fired Mr. Andujar because of his poor performance and not because of his age. However, Mr. Andujar presented evidence that five other store managers between 25 and 34 years old had failing PEP score, but GNC did not put any of them on an Action Plan, let alone fire them.

New Jersey Employers Can’t Discriminate for Medical Marijuana Use Outside of Work

April 1, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division recognizes that an employer can violate the New Jersey Law Against Discrimination (“LAD”) if it discriminates against a disabled employee because he uses medically prescribed marijuana to treat a disability outside of the workplace.

Justin Wild worked as a licensed funeral director for Carriage Funeral Holdings, Inc. (“Carriage”). Mr. Wild has cancer. Pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act, Mr. Wild has been prescribed marijuana to help with the associated pain. The Compassionate Use Act decriminalizes the use of marijuana for certain medical reasons including pain relief for individuals with cancer.

In 2016, while working for Carriage, Mr. Wild was in a car accident and had to be taken to the emergency room. He was prescribed pain medication and released from the hospital the same day. At home, Mr. Wild took the pain medication and used medical marijuana.

New Protection to Employees Under New Jersey Law Against Discrimination

March 19, 2019 | by Jonathan I. Nirenberg

Yesterday, Governor Phil Murphy signed into law a very important amendment to the New Jersey Law Against Discrimination (“LAD”).

Employees Cannot Waive Anti-Discrimination Rights in Advance

Under the amendment, any provision in an employment contract that requires employees to waive in advance any “substantive or procedural right or remedy relating to a claim of employment discrimination, retaliation, or harassment” violates New Jersey’s public policy and is unenforceable. Similarly, employers no longer can require employees to prospectively waive any of their rights or remedies under the LAD, “or any other statute or case law.” However, this provision does not apply to the terms of union collective bargaining agreements.

Judge Grants Tax Gross-Up in Discrimination Lawsuit

August 8, 2018 | by Jonathan I. Nirenberg

In a recent opinion, a federal judge ruled that nine retired Jersey City Police Sergeants who prevailed in their employment discrimination and retaliation lawsuits should have their economic damages awards increased to offset the negative tax consequences of receiving a lump sum payment rather than receiving higher salaries and pensions over time.

The opinion stems from two lawsuits that were consolidated for purposes of trial. Between the two cases, nine retired Police Sergeants sued Jersey City, its former Mayor, Jerramiah Healy, and its former Police Chief, Robert Troy, for failing to make any promotions to Lieutenant from a 2003-2006 promotional list. They alleged Jersey City’s decision to do so constituted discrimination based on political affiliation and expression discrimination, in violation of the First Amendment, and was retaliation because one of the Sergeants, Valerie Montone, objected about gender discrimination, in violation of the New Jersey Law Against Discrimination (“LAD”).

The case went to trial and the jury found that Jersey City had discriminated and retaliated against all nine of the plaintiffs. It awarded economic damages totaling more than $2.2 million, or an average of more than $240,000 per person.

Slight Delay to Promotion Not Legally Actionable Discrimination

July 13, 2018 | by Jonathan I. Nirenberg

In a recent opinion, the Third Circuit Court of Appeals ruled that an employer’s failure to promote an employee was not legally actionable discrimination where the employer promoted the same individual to the same job approximately one month later.

Evon Grossberg worked for the Hudson County Department of Social Services as a Human Resources Specialist. Ms. Grossberg is African American. In July 2013, she applied for a promotion to the position of Training Technician. At the time, Ms. Grossberg was 58 years old.

In early August 2013, Hudson County promoted another employee who was in her low to mid-twenties and Egyptian, rather than African American, to the position of Training Technician. When Ms. Grossberg asked her supervisor why she had not received the promotion, her supervisor told her to speak to her union representative. Ms. Grossberg then filed a complaint with her union representative. She also submitted an online intake form to the United States Equal Opportunity Commission (“EEOC”) as part of the process to file a Charge of Discrimination.

Are Telecommuters Protected by the New Jersey Law Against Discrimination?

May 22, 2018 | by Jonathan I. Nirenberg

The New Jersey Law Against Discrimination (“LAD”) prohibits discrimination in the workplace. But does it protect employees who work for New Jersey companies remotely, such as telecommuters? A recent ruling by New Jersey’s Appellate Division makes it clear that an employee does not have to physically live or work in New Jersey to be protected by the LAD.

Susan Trevejo worked for Legal Cost Control (“LCC”) for 12 years. After LCC fired her, Ms. Trevejo sued for age discrimination in violation of the LAD. LCC is a New Jersey company which has its headquarters in Haddonfield, New Jersey. However, Ms. Trevejo is a resident of Massachusetts who has never lived in New Jersey or worked in LCC’s office in New Jersey aside from a few meetings she attended earlier in her tenure with the company. Rather, she worked remotely from her home.

Early into the case, LCC filed a motion for summary judgment, claiming that the LAD does not apply to Ms. Trevejo because she is not an “inhabitant” of New Jersey. The trial court denied LCC’s motion, and instead permitted the parties to engage in some limited discovery (the process of exchanging information in a lawsuit) about Ms. Trevejo’s right to bring a claim under the LAD.

New Jersey Enacts Stronger Equal Pay Law

April 25, 2018 | by David Ben-Asher

Governor Murphy signed into law on April 24, 2018 a law known as the Diane B. Allen Equal Pay Act. It amends the New Jersey Law Against Discrimination (“LAD”) to expand and strengthen the rights of employees to be paid equally for their work without regard to their gender, pregnancy, race, age, national origin, ancestry, age, disability, marital status, civil union and domestic partnership status, and sexual orientation—which are known as protected classes. As a result, New Jersey may have the strongest state law in the country which prohibits discrimination in pay.

The new law, which goes into effect on July 1, 2018, makes it unlawful for an employer to pay an employee lower compensation than it pays employees for substantially similar work because of the employee’s membership in a protected class. The judgment whether work is substantial similar is based on looking at the skill, effort and responsibility which the jobs involve. The comparison of wage rates will be based on rates in all of the employer’s operations and facilities.

Employers are prohibited from correcting unequal compensation by reducing the pay rate of any employee. Instead, the employer must increase the pay of the lower paid employee to the level of the higher paid employees who performs substantially similar work.

Supreme Court Allows More Time to Refile Cases in State Court

February 1, 2018 | by Jonathan I. Nirenberg

Last week, the United States Supreme Court issued an interesting ruling in an employment law case that impacts the statute of limitations.

By way of background, when a case is filed in (or removed to) federal court based on the fact that the plaintiff has asserted a federal claim, the plaintiff can bring related state law claims in the same case. For example, if an employee brings a claim under Title VII of the Civil Rights Act (“Title VII”), a federal anti-discrimination law, he also can assert related claims under the New Jersey Law Against Discrimination (“LAD”). This is called “supplemental jurisdiction.”

Under the Supplemental Jurisdiction Statute, if you bring state law claims in federal court, and all of your federal claims are dismissed, then the Court has the option to let you continue to pursue your state law claims in federal court. However, if the federal court chooses not to hear your state law claims, then you have the right to re-file your state law claims in state court.

New Jersey Law Against Discrimination Protects Breastfeeding

January 18, 2018 | by Jonathan I. Nirenberg

Last week, the New Jersey Law Against Discrimination (“LAD”) was expanded to prohibit discrimination and harassment on the basis of breastfeeding and to require employers to provide certain reasonable accommodations for nursing.

The LAD is New Jersey’s anti-discrimination law. It prohibits discrimination and harassment based on age, color, disability, gender (sex), marital status, national origin, pregnancy, race, religion, sexual orientation, veteran or military status.

On January 8, 2018, Governor Christie signed into law an amendment to the LAD to include breastfeeding as a new legally-protected category. As a result, now employers, unions, landlords, real estate agents, banks, and places of public accommodations, among others, cannot discriminate against women because they are breastfeeding.