Discrimination

Law Would Make it Illegal to Seek Job Candidate’s Salary History

October 18, 2016 | by Jonathan I. Nirenberg

A potential amendment to the New Jersey Law Against Discrimination (“LAD”) would make it illegal for employers to ask prospective employees about their wage and salary history before hiring them. The LAD is an anti-discrimination law that protects New Jersey employees from discrimination, harassment and related retaliation.

Introduced last month by Senators Nia H. Gill (Dem. Essex/Passaic) and Loretta Weinberg (Dem. Bergen), the bill would make it unlawful for an employer to reject or screen a job applicant based on his or her past salary or wages. More specifically, it would prohibit employers from having a minimum or maximum requirement for job applicants in terms of past salary, wages or benefits. It also would prohibit employers from relying on a job applicant’s previous compensation at any time during the hiring process, up to and including finalizing an employment contract or job offer.

In addition, the proposed amendment to the LAD would make it unlawful for an employer to inquire about a job candidate’s compensation and benefits history, either in writing or otherwise unless the candidate voluntarily provided the employer a written authorization to obtain his or her compensation or benefits history.

Employer Can’t Fire Employee for Mistake Caused by its Failure to Accommodate his Disability

September 29, 2016 | by Jonathan I. Nirenberg

A New Jersey court recently ruled that a jury must determine whether an employer committed disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) by firing an employee for making a mistake on a day on which he had asked to be on a medical leave.

Matthew Cook worked for Gregory Press, Inc. as a printing machine operator. In 2011, he began to experience neck pain, numbness and tingling in face, and tingling in his hands. He saw a doctor who recommended an MRI.

In the meantime, Mr. Cook’s home was flooded and severely damaged by Hurricane Irene. He took almost a week off from work to repair his home.

NJ Supreme Court Makes it Harder to Reduce Emotional Distress Damages

September 20, 2016 | by Jonathan I. Nirenberg

Yesterday, in an employment discrimination case, the New Jersey Supreme Court dramatically limited the right of courts to reduce the amount of a jury’s emotional distress damages award, ruling that courts can only do so in unusual cases.

The case was filed by two brothers, Ramon and Jeffrey Cuevas. The Cuevas brothers are Hispanic. Their employer, Wentworth Property Management Corporation, subjected them to derogatory and humiliating remarks relating to their race. It fired the brothers shortly after Jeffrey complained about the harassment.

After a trial, the jury awarded Ramon over $1 million in lost wages, $800,000 in emotional distress damages and $52,500 in punitive damages. It also awarded Jeffrey $150,000 in lost wages, $600,000 in emotional distress damages and $32,500 in punitive damages. Wentworth asked the trial court to remit (reduce) the emotional distress damages awards, arguing they were excessive.

Employee Hired When 60 Years Old Can Proceed with Age Discrimination Claim

August 17, 2016 | by Jonathan I. Nirenberg

Last month, New Jersey’s Appellate Division reversed a trial court’s ruling that had dismissed an employee’s age and disability discrimination case.

Spencer Robinson worked for Armadillo Automation, Inc., also known as Onyx Valve Co., in its assembly department. When Onyx hired Mr. Robinson, he was 60 years old. According to Mr. Robinson, when he was hired he made it clear he had a lower back condition and needed a stool so he could sit during the workday. Onyx provided him a stool.

Approximately six years later, Mr. Robinson experienced neck pain while he was working. He claims he reported his injury to the company’s vice president, who refused to send him the doctor and indicated he did not believe it was a workplace injury. Mr. Robinson further alleges the vice president told him he would not take him to the hospital unless he was “passed out on the floor or profusely bleeding.”

Treating Physician Can Testify About Employee’s Disability

August 1, 2016 | by Jonathan I. Nirenberg

Earlier this year, the New Jersey Supreme Court ruled that in an employment discrimination lawsuit the employee’s treating physician can offer medical opinions relating to the medical treatment without having to be designated an expert witness.

Patricia Delvecchio worked for the Township of Bridgewater as a police dispatcher. Ms. Delvecchio suffers from irritable bowel syndrome (“IBS”). She claims her IBS is a disability which Bridgewater failed to accommodate, in violation of the New Jersey Law Against Discrimination (“LAD”). Specifically, she asked the department not to require her to work the night shift because doing so exacerbated her IBS. The town refused, claiming doing so would impose an undue hardship since it would have to require other dispatchers to work the night shift more frequently. Bridgewater also denied Ms. Delvecchio’s requests to take an extended sick leave.

Eventually, the Township asked Ms. Delvecchio to resign. Ms. Delvecchio refused, and instead accepted a job as a records clerk, a position with a lower salary than her previous job as a police dispatcher. Ultimately, Bridgewater fired Ms. Delvecchio for “neglect of duty” and “chronic/excessive absenteeism” because she had exceeded her allotment of sick leave.

Employers Can’t Fire Employees Based on Stereotypes About Divorce

July 1, 2016 | by Jonathan I. Nirenberg

Last week, the New Jersey Supreme Court concluded that the New Jersey Law Against Discrimination (“LAD”), which includes a prohibition against marital status discrimination, not only makes it unlawful for employers to discriminate against employee because they are married or single but also because they are separated, engaged, or seeking a divorce.

Robert Smith worked for the Millville Rescue Squad for 17 years, most recently as its Director of Operations. Mr. Smith’s wife, Mary Smith, also worked for the Squad. In 2005, Mr. Smith had an affair with one of his subordinates. When Mrs. Smith learned about her husband’s affair, she reported it to his immediate supervisor, John Redden.

In early 2006, Mr. Smith moved out of his home and told Mr. Redden that his marriage had collapsed. On February 16, 2006, Mr. Smith told Mr. Redden he did not think there was any chance he would reconcile with his wife. In response, Mr. Redden indicated that he expected it would be an “ugly divorce.” Mr. Redden also told Mr. Smith he had previously discussed the issue with the Squad’s Board of Directors, but would not have done so if he believed there was any chance Mr. Smith would reconcile with his wife. Mr. Redden fired Mr. Smith the next day.

Court Rejects Testimony of Undisclosed Witnesses in Religious Accommodation Lawsuit

March 16, 2016 | by Jonathan I. Nirenberg

A recent ruling by the United States District Court for the District of New Jersey underscores the importance of disclosing potential witnesses to your opposing party during the discovery process of a lawsuit.

The case was filed by Matthew Webster, an individual whom Dollar General hired to be its store manager in a new location in Sicklerville, New Jersey. Mr. Webster is a Seventh Day Adventist. He asked Dollar General to allow him not to work on Saturday because his religious beliefs prevent him from doing so. The employer denied his request claiming it would have imposed an undue burden on its ability to operate the Sicklerville store. Among other things, Dollar General contends that doing so would leave the store without sufficient and capable leadership on the “busiest sales day” of the week and would require other key personnel to work longer and more frequent shifts.

Ultimately, Dollar General fired Mr. Webster because he would not work on Saturdays. Mr. Webster sued, alleging Dollar General and two of its employees, Bob Miller and Vince Triboletti, denied him a reasonable accommodation for his religious beliefs and otherwise discriminated against him because of his religion in violation of the New Jersey Law Against Discrimination (“LAD”).

Hispanic is a “Race” Under Federal Anti-Discrimination Laws

February 23, 2016 | by Jonathan I. Nirenberg

Earlier this month, the United States Court of Appeals for the Second Circuit recently recognized that “Hispanic” is a race for purposes of two federal anti-discrimination laws.

The case involved Police Lieutenant Christopher Barrella, a white Italian-American. Lt. Barrella works for the Village of Freeport, New York. When there was a vacancy for chief of police, Lt. Barrella and 5 other lieutenants took the relevant civil service test. Although Lt. Barrella scored highest on the test, Mayor Andrew Hardwick chose to promote another candidate, Lieutenant Miguel Bermudez.

Lt. Barrella sued Freeport and Mayor Hardwick, claiming they discriminated against him because of his race (non-Hispanic) in violation of the New York State Human Rights Law (“NYSHRL”) and two federal laws, Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. He claims Mayor Hardwick, who is African American, promoted Lt. Bermudez, who was born in Cuba, because he is Hispanic.

Employers Need Sufficient Basis to Require Fitness for Duty Exam

February 8, 2016 | by Jonathan I. Nirenberg

A recent ruling by New Jersey’s Appellate Division demonstrates that an employer can commit disability discrimination in violation of the Americans with Disabilities Act (“ADA”) if it requires an employee to attend a psychiatric fitness for duty exam without a sufficient basis to do so.

Paul Williams worked for the Township of Lakewood, New Jersey as a truck driver for the Department of Public Works (“DPW”). In March 2013, Lakewood received an anonymous letter which claimed Mr. Williams’s coworkers “dread” working with him and “everyone knows he has some sort of mental issues” that lead to daily “tirades and outbursts.” The letter asked Lakewood to get Mr. Williams help, and to take steps to ensure the safety of his coworkers.

Lakewood waited more than eight months before it did anything in response to the letter. In December 2013, it ordered Mr. Williams to attend a psychological fitness for duty examination, and warned him he would be subject to discipline if he failed to attend. Mr. Williams refused to attend the exam, claiming it violated his rights under the ADA. True to its warning, Lakewood fired Mr. Williams.

Employee Entitled to Evidence of Employer’s Past Discrimination Based on Different Protected Categories

February 1, 2016 | by Jonathan I. Nirenberg

Recently, the New Jersey Appellate Division ruled that an employee who brought a discrimination lawsuit is entitled to obtain evidence about the facts of another employment discrimination lawsuit against one of the individuals he claims discriminated against him. The Court reached this conclusion even though the alleged discrimination in the previous case was based on completely different legally-protected categories.

Harold Hansen brought a discrimination lawsuit against his former employer, Rite Aid Corporation, and its Loss Prevention Manager, Craig Mauriello, among others. Rite Aid fired Mr. Hansen in May 2008. Although the company did not give Mr. Hansen any explanation when it fired him, it subsequently claimed it fired him because he violated company policy by failing to report to management that several other store employees had reported to him that they believed the daughter of another employee was shoplifting from the store.

In his lawsuit, Mr. Hansen claims the decision to fire him was based on his age, gender and sexual orientation in violation of the New Jersey Law Against Discrimination (“LAD”).