Discrimination

Reasonable Accommodations for Pregnancy Required Under Federal Law

April 21, 2015 | by Jonathan I. Nirenberg

The United States Supreme Court recently ruled that the federal Pregnancy Discrimination Act (“PDA”) can require employers to provide reasonable accommodations to women who are pregnant even if they are not disabled.

The PDA establishes that pregnancy discrimination in the workplace violates federal law. It also includes a provision that requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

In the case, Peggy Young worked for United Parcel Service, Inc. (“UPS”) as part-time driver. Although UPS requires its drivers to be able to lift packages up to 75 pounds, during the first 20 weeks of her pregnancy Ms. Young’s doctor advised her not to lift more than 20 pounds. UPS provides accommodations to disabled employees who are unable to lift 75 pounds, as well as to employees who have lost their Department of Transportation certifications. The company refused to provide this accommodation to Ms. Young. Instead, it placed her on an unpaid leave of absence during most of her pregnancy. Ms. Young sued, alleging UPS violated the PDA by failing to accommodate her lifting restrictions.

Estimating Settlement Value of Employment Law Cases

April 9, 2015 | by Jonathan I. Nirenberg

Last week, I discussed how to calculate the potential value of a wrongful termination case at a trial. However, most employment law cases settle rather than going to a trial. Accordingly, it also is important to be able to assess the potential settlement value of your case.

Risk of Loss

Since proving discrimination or retaliation requires you to show what is in someone else’s mind, most of these cases are inherently risky. As a result, when trying to determine what might be an acceptable settlement you should factor in the risk that you could lose your case.

New Jersey Prohibits Religious and Political Intimidation at Work

February 10, 2015 | by Jonathan I. Nirenberg

New Jersey has many well-known laws that protect employees. Perhaps the two best know are the New Jersey Law Against Discrimination (“LAD”), an anti-discrimination law, and the Conscientious Employee Protection Act (“CEPA”), a whistleblower law. The state has many other employment laws as well.

One much less known law is the Worker Freedom From Employer Intimidation Act, which went into effect in 2006. It protects employees against certain forms of religious and political intimidation at work. Specifically, it prohibits companies from requiring employees to attend meetings or to participate in communications regarding the employer’s opinion about religious or political issues. The law defines “political matters” to include affiliation with a political party, as well as decisions to join, not join, or participate in “any lawful political, social, or community organization or activity.”

Despite that prohibition, the act allows employers to invite employees to voluntarily attend employer-sponsored meetings and to provide other religious and political communications to their employees as long as make it clear the employees will not be penalized if they refuse to attend the meetings or accept the communications.

Jury Must Decide Whether Employee Was Fired Because of Insubordination or Age

December 3, 2014 | by Jonathan I. Nirenberg

A recent age discrimination case from the United States District Court for the District of New Jersey is a helpful reminder that just because your employer has a good excuse for its decision to fire you, it does not necessarily mean the company did not violate the law.

Carol Natale began working for East Coast Salon Services, Inc., in November 2006. At the time she was 59 years old. A little over five years later, the salon’s owner, Stan Klet, called the store. Ms. Natale answered the telephone by saying “East Coast Salon, how can I help you?” Ms. Klet claimed Ms. Natale violated company policy by failing to give her name when she answered the phone. He also claimed Ms. Natale challenged him when he told her she had violated this policy. In contrast, Ms. Natale says she told Mr. Klet that nobody ever told her to provide her name when she answers the telephone. She also claims she apologized to Mr. Klet during the call and that she did not argue with him.

After checking with its Human Resources Department, the company fired Ms. Natale. It claims it fired her because she was insubordinate, argumentative and disrespectful during the call with Mr. Klet.

Court Finds Positive Performance Reviews Sufficient to Support Disability Discrimination Claim

November 11, 2014 | by Jonathan I. Nirenberg

A recent disability discrimination opinion from the District of New Jersey reflects the relatively low burden an employee has to meet to have his case decided by a jury.

Damian Melton, a Type I diabetic, worked as a doorperson for Resorts Casino Hotel in Atlantic City for approximately six years. Due to his medical condition, Resorts granted Mr. Melton an intermittent leave under the Family & Medical Leave Act (FMLA), and did not require him to work the graveyard shift as a reasonable accommodation for his disability.

In August 2010, Mr. Melton injured his shoulder, necessitating surgery. When he returned to work a few months later the hotel assigned him to a light duty job as a valet cashier.

Judge Finds Employer Failed to Present Legitimate Reason for Failing to Promote Employee

October 8, 2014 | by Jonathan I. Nirenberg

In a recent case, a federal judge in the District of New Jersey denied an employer’s motion for summary judgment because the employer failed to meet its very limited burden to provide a legitimate non-discriminatory reason why it failed to promote her.

The employee, Virginia Forchion, claims Sears Outlet Stores, LLC, failed to promote her to the position of lead sales associate because of her age, gender, and race. She filed a lawsuit under the New Jersey Law Against Discrimination (“LAD”). Sears asked a trial judge to dismiss her case on a motion for summary judgment. The judge denied the motion, finding Sears failed to provide any explanation why it hired Bradley Stonehouse, a younger white male, for the position instead of promoting Ms. Forchion.

To understand why the judge denied Sears’ motion, it is necessary to understand how judges analyze employment discrimination claims. Since proving discrimination case can be difficult, judges apply something called the McDonnell Douglas test. Under that test, the burden shifts back and forth between the employer and the employee.

New Jersey Court Upholds $800,000 and $600,000 Emotional Distress Awards in Race Discrimination Lawsuit

September 29, 2014 | by Jonathan I. Nirenberg

A recent ruling from New Jersey’s Appellate Division upheld a $1.4 million emotional distress damages award to two employees in a race discrimination case.

Brothers Ramon and Jeffrey Cuevas worked for The Wentworth Group. Ramon was the company’s only Hispanic regional vice president. Jeffrey Cuevas was hired as a portfolio manager, and subsequently promoted to executive director.

Ramon claims the company subjected him to a variety of racially-motivated derogatory comments including members of management:

EEOC Issues New Pregnancy Discrimination Enforcement Guidelines

August 1, 2014 | by Jonathan I. Nirenberg

A few weeks ago, the United States Equal Opportunity Commission (EEOC) issued new enforcement guidelines regarding the federal Pregnancy Discrimination Act (PDA) and related claims under the Americans with Disabilities Act (ADA).

The PDA prohibits most employers from discriminating against employees based on pregnancy, childbirth or related medical conditions. It also requires them to treat women based on their ability or inability to work, rather than based on pregnancy, childbirth, or related medical conditions. The ADA prohibits employers from discriminating against employees because they have a disability, including a pregnancy-related disability. It also requires employers to provide reasonable accommodations to permit disabled employees to perform the essential functions of their jobs.

The EEOC’s guidelines make it clear employers cannot discriminate against employees based on a current or past pregnancy. It notes employees are more likely to prove discrimination claims based on past pregnancies when the employer takes an adverse action (such as termination or demotion) relatively quickly after the employee gave birth. For instance, there can be a strong inference of pregnancy discrimination when an employer takes a negative action while the employee is still on a maternity leave, or right after she returns from one.

Discrimination Because of Pending Divorce Violates New Jersey Law

July 24, 2014 | by Jonathan I. Nirenberg

A recent Appellate Division opinion recognizes that firing an employee because he or she is in the process of getting divorced violates the New Jersey Law Against Discrimination (LAD) because it constitutes marital status discrimination.

Robert Smith worked for the Millville Rescue Squad for 17 years as an emergency medical technician (EMT) for 27 years. Mr. Smith’s wife, who also worked for Millville, was one of his subordinates. The couple separated after Mr. Smith’s wife learned he had been having an affair with another subordinate.

Mr. Smith told his supervisor, John Redden, that he had his wife had separated, and indicated he did not think there was any chance he would reconcile with her. Millville fired Mr. Smith approximately six weeks later.

Court Permits Employee to Proceed With Reverse Discrimination Lawsuit

May 21, 2014 | by Jonathan I. Nirenberg

While minorities are most frequently the victims of discrimination, it is well-established that reverse discrimination also violates the New Jersey Law Against Discrimination (LAD). For example, it is unlawful for a company to discriminate against an employee because he is male, white, or under 40 years old. However, since reverse discrimination is less common, New Jersey courts have established a higher standard for employees who bring reverse discrimination or harassment claims by requiring them to present evidence that they work for the unusual employer that discriminates against the majority.

Warehouse A recent decision out of the United States District Court for the District of New Jersey denied an employer’s motion to dismiss a claim of reverse race discrimination, finding the employee had enough evidence to meet this heightened standard. The court explained there are two categories of evidence that employees can use to help meet this standard: (1) evidence that the specific employer has a reason to want to discriminate against the majority, and (2) evidence there is “something ‘fishy’” about the facts of the case that suggests the employer is discriminating.

The case was brought by Frank McQuillan, who worked for Petco Animal Supplies Stores, Inc., as an order picker at a distribution center in Monroe, New Jersey. Mr. McQuillan claims Petco harassed him because he is Caucasian.