Discrimination

NEW JERSEY HOSPITALS REQUIRING OLDER DOCTORS TO UNDERGO MEDICAL SCREENING EXAMS AS A CONDITION OF MAINTAINING STAFF PRIVILEGES ARE LIKELY VIOLATING NEW JERSEY’S LAW AGAINST DISCRIMINATION

Published on: June 14, 2021 | by Mashel Law, L.L.C.

Older doctors in New Jersey who are required to undergo medical screening examinations as a condition of maintaining hospital staff privileges likely have the right to sue for age discrimination under New Jersey’s Law Against Discrimination, N.J.S.A., 10:5-1, et seq. (“LAD”). Supporting this conclusion is the belief held by the federal Equal Employment Opportunity Commission (“EEOC”) that age-based medical screenings of doctors violates federal discrimination laws.

In February 2020, the EEOC filed a lawsuit against Yale New Haven Hospital Inc. (“Yale”), charging the health system with violating the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. and the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101, et seq. Specifically, the EEOC alleges Yale’s “Late Career Practitioner Policy” discriminates against medical practitioners on the basis of age. The hospital’s policy requires medical practitioners who are seventy (70) years or older to take ophthalmological and neuropsychological evaluations to test cognitive and eye function. Yale claims the hospital policy has the salutary aim of screening to identify the potentially compromised abilities of older physicians. The EEOC lawsuit filed in 2020 in the U.S. District Court for the District of Connecticut (EEOC v. Yale New Haven Hospital, Civil Action No. 3:20-cv-00187) seeks relief against Yale including, inter. alia., a permanent injunction preventing Yale from carrying out the policy or other policies that “discriminate on the basis of age,” as well as to obtain back wages and liquidated damages on behalf of those doctors negatively affected by the policy. This lawsuit remains unresolved and pending as of this writing.

Should such age-based screening of doctors be found violative of the ADA and ADEA, it is predictable that our state courts will conclude these screenings equally violate New Jersey’s LAD. This is because New Jersey courts generally interpret the LAD by reliance upon federal court decisions construing the analogous federal antidiscrimination statutes. Chisolm v. Manimon, 97 F. Supp. 615, 621 (D. N.J. 2000). For example, in LAD employment discrimination cases, federal precedents under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17, provide a key source of interpretive authority. Lehmann v. Toys `R’ Us, Inc., 132 N.J. 587, 600 (1993). In LAD cases specifically involving age discrimination in employment, New Jersey courts adopt the analysis of federal Title VII cases and federal cases under the ADEA. Giammario v. Trenton Bd. of Educ., 203 N.J. Super. 356, 361 (App. Div. 1985). Further, in LAD disability discrimination cases, the New Jersey courts look to the standards established in federal ADA cases. Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir. 1996).

THE NEW JERSEY LAW AGAINST DISCRIMINATION MAY PROTECT VICTIMS OF DISCRIMINATION WHO RESIDE OUTSIDE OF NEW JERSEY

Published on: October 16, 2020 | by Mashel Law, L.L.C.

In 1945 New Jersey became the first state since the Reconstruction era to pass comprehensive anti-discrimination legislation with its enactment of the Law Against Discrimination, or as it is more commonly called, the “LAD.” In enacting the LAD, the NJ Legislature declared “that practices of discrimination against any of its inhabitants…are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3. While the LAD expressly states that “inhabitants” or residents of New Jersey are protected from discrimination, no mention is made as to whether its protections extend to victims of discrimination who reside or work outside of New Jersey. Fortunately, in Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (App. Div. 2019) the New Jersey Superior Court, Appellate Division concluded the LAD could extend in appropriate circumstances to plaintiffs who reside or work outside of New Jersey.

In Calabotta, the plaintiff, an Illinois resident, sued his New Jersey-based former employer, alleging that it wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois. Specifically, plaintiff Calabotta claimed that the company engaged in “associational” discrimination against him in violation of LAD based on the fact that his wife was then terminally ill with cancer. As an initial matter the Appellate Division in Calabotta found there to be a conflict between New Jersey law and Illinois law when it came to recognizing “associational” discrimination as a viable cause of action. It was recognized in New Jersey. O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249, 255 (App. Div. 1998) (where a plaintiff is wrongfully discharged for associating with a member of a protected group under the LAD, it is the functional equivalent of being a member of that same protected group). By contrast, Illinois law had not recognized a cause of action for associational discrimination.

In deciding whether LAD covered plaintiff Calabotta’s failure to promote and wrongful discharge claims, the Court decided the factors spelled out in the Restatement (Second) of Conflicts of Laws (the “Second Restatement”) were applicable:

A HOMAGE TO THE LATE SUPREME COURT JUSTICE RUTH BADER GINSBURG

Published on: September 24, 2020 | by Mashel Law, L.L.C.

With the passing of United States Supreme Court Justice Ruth Bader Ginsburg (March 15, 1933 – September 18, 2020) this country lost an irreplaceable and implacable advocate for the bedrock notion that every person regardless of their sex, race, national origin, disability or sexual orientation, or other unique or protected characteristic, should be treated equally under the law. In the employment context, a great example of Justice Ginsburg’s spirited pursuit of equality for all is found in her dissenting opinion in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). This dissent helped to galvanize the later passage and signing into law of the Lilly Ledbetter Fair Pay Act which makes clear that pay discrimination claims on the basis of sex, race, national origin, age, religion and disability, accrue whenever a discriminatory pay decision or practice is adopted, or when a person becomes subject to the decision or practice, or when a person is affected by the disparate pay decision or practice, including whenever s/he receives a discriminatory paycheck

Lilly Ledbetter was one of a few female supervisors at the Goodyear plant in Gadsden, Alabama. She suspected she was getting fewer and lower pay raises than similarly situated male supervisors but had no proof until she received an anonymous note revealing the salaries of three of the male managers. After she filed a complaint with the EEOC, her case went to trial, and the jury awarded her back-pay and approximately $3.3 million in compensatory and punitive damages for the extreme nature of the pay discrimination.

The Court of Appeals for the Eleventh Circuit reversed the jury verdict, holding that her case was filed too late – even though Ms. Ledbetter continued to receive discriminatory pay – because the company’s original decision on her pay had been made years earlier. In a 5-4 decision authored by Justice Alito, the Supreme Court upheld the Eleventh Circuit decision and ruled that employees cannot challenge ongoing pay discrimination if the employer’s original discriminatory pay decision occurred outside of the statute of limitations period – which in Alabama was a mere 180- day period – even when the employee continues to receive paychecks that have been discriminatorily reduced.

COVID-19 AS A COVERED DISABILITY UNDER NEW JERSEY LAW

Published on: August 31, 2020 | by Mashel Law, L.L.C.

Federal and state disability discrimination laws do not currently address whether COVID-19 is a covered disability under their respective statutory schemes. However, given the liberality by which New Jersey’s Law Against Discrimination, N.J.S.A., 10:5-1, et. seq. (the “LAD”) is to be applied and considering the recent enactment of a New Jersey law prohibiting employer’s from taking adverse employment actions against employees who take or request time off due to an infectious disease such as COVID-19, it is likely our New Jersey courts will conclude that contraction and/or documented exposure to COVID-19 will be deemed a covered disability under the LAD.

In Tihara Worthy v. Wellington Estates LLC, et. al., filed in the New Jersey Superior Court on June 15, 2020, Plaintiff Tihara Worthy sued her former employer, Wellington Estates LLC, for wrongful termination, alleging the employer terminated her employment because she had contracted coronavirus disease 2019 (“COVID-19”). Ms. Worthy alleged her termination violated the New Jersey Law Against Discrimination (“LAD”) and common law. According to her complaint, Ms. Worthy worked as a Certified Medical Assistant in Wellington Estates LLC’s senior living and assisted living community in Spring Lake, New Jersey. On or about April 19, 2020, she learned she had tested positive for COVID-19. She immediately notified her employer and commenced a leave of absence. On or about May 11, 2020, after a month-long leave of absence, Ms. Worthy tested negative for COVID-19 and was given a return-to-work date of May 16, 2020. However, before she was scheduled to return to work, her employer’s Executive Director telephoned her and told her she was not welcome to return to work because she had contracted COVID-19 and “could have gotten everyone sick.”

The Americans with Disabilities Act (ADA) defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C.S. § 12102. The LAD defines “disability” as “physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness…resulting from anatomical, psychological, physiological, or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.” N.J.S.A., 10:5-5(q). Hence, as compared to the ADA, the LAD does not contain a requirement that a disability substantially limit a major life activity, as the ADA definition does; thus, an employee who contracts COVID-19 but is not substantially limited in a major life activity may be disabled under the LAD even if found not to be so under the ADA.

UNITED STATES SUPREME COURT NARROWS EMPLOYMENT PROTECTIONS FROM STATE AND FEDERAL ANTI-DISCRIMINATION LAWS FOR RELIGIOUS SCHOOL TEACHERS

Published on: July 17, 2020 | by Mashel Law, L.L.C.

On July 8, 2020, the United States Supreme Court narrowed employment protections from state and federal anti-discrimination laws for religious schoolteachers. In Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267, the Court held that the First Amendment’s religion clauses foreclose courts from hearing employment-discrimination claims from teachers at religious schools who have at least some role in teaching the faith.

In 2012, the Supreme Court ruled, in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012), that the “ministerial exception,” which bars ministers from suing churches and other religious institutions for employment discrimination, prohibited a lawsuit filed by a teacher at a Lutheran school who was also an ordained minister. By a vote of 7-2, the Court held that the exception also forecloses lawsuits by two teachers at Catholic elementary schools in southern California. Although the teachers were not ordained ministers, the schools had argued that the exception nonetheless applied because they played a key role in teaching religion to their students, and the Court – in an opinion by Justice Samuel Alito – agreed.

The decision came in a pair of cases, against parish schools in the Los Angeles area. Agnes Morrissey-Berru taught at Our Lady of Guadalupe School in Hermosa Beach for nearly two decades before she was told that her contract would not be renewed. Morrissey-Berru went to federal court, where she claimed that she had been the victim of age discrimination. The district court threw out the lawsuit, agreeing with the school that the ministerial exception applied. The second plaintiff, Kristen Biel, sued St. James School in Torrance when – not long after she disclosed that she was being treated for breast cancer – the school failed to renew her contract. Biel claimed that the school had discriminated against her because she had cancer, but the district court agreed with the school that Biel’s lawsuit was barred by the ministerial exception. The United States Court of Appeals for the 9th Circuit reinstated both teachers’ lawsuits. It reasoned that the ministerial exception normally applies when an employee plays a “religious leadership” role, but that Biel and Morrissey-Berru played a more limited role, mostly “teaching religion from a book.” The schools went to the Supreme Court, which reversed.

THE UNITED STATES SUPREME COURT EXTENDS WORKPLACE DISCRIMINATION PROTECTIONS TO THE LGBTQ COMMUNITY

Published on: June 19, 2020 | by Mashel Law, L.L.C.

When Donald J. Trump was elected president in 2016, gay and lesbian leaders feared their far-reaching civil rights victories of recent years would be in peril because of the imminent arrival of scores of conservative judges and full Republican control of the federal government. But on Monday, June 15, 2020, Trump appointee Justice Neil Gorsuch authored an historic 6-3 majority opinion by the Supreme Court of the United States providing nationwide protections for the LGBTQ community against workplace discrimination. In Bostock v. Clayton County, Georgia 2020 WL 3146686, Justice Gorsuch wrote, “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. *** We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” Prior to Bostock, it was legal in more than half of the states of our country to fire or not hire workers for being gay, bisexual, or transgender.

The decision in Bostock covering three cases was the Court’s first on LGBTQ rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions including the seminal case of Obergefell v. Hodges, 576 U.S. 135 (2015) legalizing gay marriage in the country. The first of these cases concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock and Altitude Express Inc. v. Zarda, No. 17-1623. The third was a gender identity case entitled R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107. R.G. & G.R., was brought by a transgender woman named Aimee Stephens who was fired from a Michigan funeral home after making it known in 2013 that she was a transgender woman and would start working in women’s clothing. When describing the 3 cases, Justice Gorsuch wrote, “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

Justice Gorsuch began his opinion in Bostock by explaining that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law. Here, he reasoned, the word “sex” means either male or female. Under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” Justice Gorsuch stressed that what matters is whether “changing the employee’s sex would have yielded a different choice by the employer.” Discrimination against LGBTQ employees, Justice Gorsuch and the rest of the majority made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.”

COVID-19 VICTIMS PROTECTED BY NEW JERSEY EMPLOYMENT LAWS

Published on: March 13, 2020 | by Mashel Law, L.L.C.

As the COVID-19 pandemic spreads its fear and pestilence throughout our communities, it is important for New Jersey workers to be aware there are many employment laws available to protect their jobs should they need time off from work because they or a family member becomes sick from the virus. This article will discuss job protections provided by New Jersey Law Against Discrimination, the American With Disabilities Act, the federal Family and Medical Leave Act, the New Jersey Family Leave Act, and New Jersey’s Paid Sick Leave Act.

Protections Provided By the New Jersey’s Law Against Discrimination (LAD) and the federal American With Disabilities Act (ADA)

An employee suffering the temporary disabling effects of a virus induced disability may find protection under the “reasonable accommodation” requirements of the New Jersey’s Law Against Discrimination (LAD) and the federal American With Disabilities Act (ADA). Failla v. City of Passaic, 146 F.3d. 149 (3^rd Cir 1998); Clowes v. Terminix Int’l, Inc., 109 N.J. 575 (1988).

The New Jersey Division of Civil Rights’ Equal Pay Act Enforcement Guidance

Published on: March 12, 2020 | by Mashel Law, L.L.C.

As this blog previously informed, back on April 24, 2018, New Jersey Governor Phil Murphy signed into law the Diane B. Allen Equal Pay Act (the EPA). The EPA prohibits an employer from paying an employee who is deemed a member of a class protected under New Jersey’s Law Against Discrimination (the LAD) less than what it pays an employee who is not a member of that LAD-protected class who performs substantially similar work. Protected class characteristics under the EPA remain the same as they are under the LAD, that is, it is against the law to treat someone hostilely, unfairly or differently because of their, “race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, etc.” N.J.S.A., 10:5-12(a). This article will discuss the official enforcement guidance recently issued by the New Jersey Division of Civil Rights addressing the nature and scope of the EPA.

The EPA expands the remedies available to a victim of pay discrimination. Prior to the passage of the EPA, the LAD already prohibited employers from discriminating “in compensation or in terms, conditions or privileges of employment” based on many protected characteristics. Historically under the LAD, a person protected under the LAD could recover up to two years of back pay for a successful pay discrimination case. Now under the EPA, an employee who establishes pay discrimination can recover up to six years of back pay if the discrimination was continuous, and the most recent violation occurred within the LAD’s two-year statute of limitations. The EPA also makes clear that a violation of the LAD occurs each time an employee is “affected by application of a discriminatory compensation decision or other practice,” including each time an employee receives a paycheck. N.J.S.A. ,10:5-12(a).

The EPA requires equal pay for substantially similar work. The EPA prohibits an employer from paying any employee “who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.” N.J.S.A., 10:5-12(t). The EPA specifies that “[c]omparisons of wage rates shall be based on wage rates in all of an employer’s operations or facilities.” Id. It also prevents employers from reducing anyone’s compensation to cure a violation of the Equal Pay Act. Id.

NEW JERSEY COURT FINDS PREGNANT WORKERS ARE ENTITLED TO TEMPORARY LIGHT-DUTY ASSIGNMENTS AS A FORM OF REASONABLE ACCOMMODATION

Published on: January 13, 2020 | by Mashel Law, L.L.C.

In 2014, the New Jersey Pregnant Workers’ Fairness Act (“NJPWFA”) was signed into law to strengthen protections afforded pregnant employees. Under the NJPWFA, employers must provide pregnant workers reasonable accommodations that would allow them to continue working in their positions. The NJPWFA forbids employers from treating pregnant workers in a “manner less favorable than the treatment of other persons not affected by pregnancy.” N.J.S.A. 10:5-12(s). However, the statute does not require employers to afford pregnant employees with the same reasonable accommodations it gives to nonpregnant injured workers similar in their ability or inability to work.

The NJPWFA provides examples of reasonable accommodations, “such as…temporary transfers to less strenuous or hazardous work.” This means that if a pregnant worker requested a temporary transfer to a light-duty position made available to a similarly situated nonpregnant injured worker, then the pregnant employee should be entitled to such an accommodation under the NJPWFA. Our New Jersey Appellate Division recently addressed this very issue in Delanoy v. Twp. of Ocean, 2020 N.J. Super. LEXIS 1, *2 (Decided January 3, 2020)

In Delanoy, plaintiff, a pregnant police officer, notified her employer of her doctor’s order prohibiting her from performing certain essential patrol officer functions (e.g. carrying a gun) during the later stages of her pregnancy, and in turn recommended she be removed from patrol duty and transferred to a “light-duty” position during such time. The employer police department (the “Department”) assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’)…which allows pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time) before going on that different assignment.” Id. at *3. The Department also maintained an almost identical “Light-Duty SOP” for nonpregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. When the Department refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The Department argued that plaintiff’s transfer to a fundamentally different assignment did not constitute an accommodation as defined by the LAD because plaintiff was not entitled to a reasonable accommodation since none existed that would allow her to continue performing the essential functions of a patrol officer while pregnant.

REFUSING TO TAKE A MANDATORY FLU SHOT MAY COST A NEW JERSEY HEALTHCARE WORKER THEIR JOB

Published on: January 6, 2020 | by Mashel Law, L.L.C.

Winter brings the onset of flu season. According to the Centers for Disease Control (CDC), the flu, short for influenza, is a contagious respiratory illness that effects on average 8% of the population every flu season, or between 9.2 million and 35.6 million flu-related illnesses each year in the United States. The best way to prevent the flu is by getting a flu vaccine. Most employers not in the healthcare field do not require employees to receive compulsory vaccines of any kind, including those for the flu. However, because healthcare employees are likely to be in contact with patients with compromised immune systems, healthcare providers often require their employees to submit to mandatory vaccinations, including forced flu shots. Refusing to do so has cost many healthcare workers their jobs. For example, in November 2017, Minnesota-based Essentia Health fired 69 employees who refused to get the flu vaccine, and in 2012, Cincinnati-based TriHealth fired 150 employees for not getting the flu shot

Terminating an employee when they refuse a flu shot on religious grounds (or because of illness or disability) may give rise to a claim of unlawful discrimination in violation of New Jersey’s Law Against Discrimination (LAD). The LAD prohibits employers from “discharg[ing]” or “discriminat[ing] against [an employee] in compensation or in terms, conditions or privileges of employment” due to, among other reasons, the employee’s religion. N.J.S.A. 10:5-12(a); see also El-Sioufi v. St. Peter’s Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005). Under LAD an employer may accommodate sincerely held religious practices that may conflict with workplace rules, so long as the religious practices does not impose an undue hardship. Id.

Few reported court cases in New Jersey have been found addressing the refusal on nonreligious secular grounds to comply with a company’s compulsory flu vaccine policy. One case found is Valent v. Board of Review, Dept. of Labor, 436 N.J. Super. 41 (App. Div. 2014), where nurse Valent, an employee of Hackettstown Community Hospital (“HCH”), refused to take a flu vaccine for purely secular and personal reasons. Valent did not allege a medical or religious reason, which were the only exemptions permitted under HCH’s flu vaccination directive. Id. at 44. Despite Valent agreeing to wear a mask during flu season, HCH proceeded to terminate her employment based on Valent’s refusal to take a flu shot. Thereafter, Valent applied for state unemployment insurance benefits, and HCH contested her application claiming Valent’s refusal to take a flu shot was an act of misconduct disqualifying her from receiving full benefits. The Appellate Division disagreed with HCH by concluding that Valent was not disqualified from unemployment benefits because she did not commit any misconduct under the law. The appellate court held that Valent was within her rights to refuse to be vaccinated on purely secular reasons and was not required to show she qualified for a religion-based exemption. Id. at 48.