Discrimination

NEW JERSEY DOES NOT PERMIT DISCRIMINATORY HAIR-GROOMING POLICIES AND PRACTICES IN WORKPLACE

Published on: October 11, 2019 | by Mashel Law, L.L.C.

Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, natural hair or hairstyles associated with African Americans, such as dreadlocks, have been historically stereotyped and perceived as unprofessional against Euro-centric standards of beauty. A simple google search of “unprofessional hairstyles” reveals many images of African Americans in natural hair or braids. This sort of discrimination has subjected people across the United States to “dignitary, psychological, physiological, and financial harm.” Federal, state and local government entities have long recognized that policies which “discriminate against traditionally Black hairstyles… qualify as discrimination on the basis of race.” See EEOC Dec. No. 71-2444, 1971 WL 3898, (1971) (“the wearing of an Afro-American hair style by a Negro has been so appropriated as a cultural symbol by members of the Negro race as to make its suppression either an automatic badge of racial prejudice or a necessary abridgment of first amendment rights.”).

Recent increased incidents of discriminatory hair-grooming policies and practices directed towards people of color in schools and the workplace has brought renewed attention on this issue. For example, a white New Jersey referee forced a black high school wrestler to cut his dreadlocks before a match or face disqualification; a 6 year boy in Florida was barred from attending a private Christian academy on his first day of school because his hair extended below his ears; and an 11 year old black girl was sent home from a private Roman catholic school in Louisiana because she broke a rule on wearing hair extensions. In 2018, “54 percent of reported bias incidents in New Jersey were motivated by the victim’s race, ethnicity, or national origin. Of those, approximately 72 percent were anti-Black.” See DCR Guidance

As a consequence of this uptick in hair based discriminatory conduct, a growing movement has developed to better protect Black employees from discrimination in the workplace based on hairstyle thereby recognizing the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. Indeed, this past summer Governor Gavin Newsom of California signed the Crown Act into law making it illegal in California to enforce dress code or grooming policies against hairstyles such as afros, braids, twists and locks.

Although Required Under New Jersey Workers Compensation Act to Provide An Employee With Medical Treatment For A Work Injury, An Employer Is Not Required Under New Jersey’s Law Against Discrimination to Provide Such Treatment As A Means of Reasonably Accommodating A Claimed Disability Resulting From the Work Injury

Published on: August 30, 2019 | by Mashel Law, L.L.C.

The exclusive remedy for a worker injured on the job is to pursue workers compensation benefits under New Jersey’s Workers Compensation Act (WCA) in the form of authorized medical treatment, temporary disability benefits and a partial permanency award to the extent applicable.[1] Relatedly, New Jersey’s Law Against Discrimination (LAD) requires an employer to reasonably accommodate an employee’s disability. N.J.A.C., 13:13-2.5; Potente v. County of Hudson, 187 N.J. 103, 110 (2006). Given this intersection of the WCA and the LAD, our New Jersey Supreme Court in Caraballo v. Jersey City Police Dep’t, 237 N.J. 255 (2019) was called on in a case of first impression to determine whether an employee seeking to have his employer cover his double knee replacement surgery after suffering a serious work-related injury could pursue a failure to accommodate disability discrimination case under the LAD. The Court answered that the employee could not.

Looking to federal courts interpretation of the American with Disabilities Act (ADA) for guidance, the Court in Caraballo noted that that neither the text of the ADA nor its regulations “contemplate that an employer should be required to provide a disabled employee with medical treatment in order to restore her ability to perform essential job functions.” Caraballo, 237 N.J. at 270 quoting Desmond v. Yale-New Haven Hosp., Inc., 738 F.Supp. 2d 331, 350 (D. Conn. 2010). Likewise, the Caraballo Court looked at the Equal Employment Opportunity Commission’s compliance manual, which states that “an employer has no responsibility to monitor an employee’s medical treatment or ensure that s/he is receiving appropriate treatment because such treatment does not involve modifying workplace barriers.” Caraballo, 237 N.J. at 269; Desmond, 738 F. Supp. 2d. at 350 quoting EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Compliance Manual § 92, No. 915.002 (Oct. 17, 2002). Accordingly, the Caraballo Court held that the double knee replacement surgery sought by Plaintiff Caraballo was neither a modification to the work environment nor a removal of workplace barriers. Rather, “it was a means to treat or mitigate the effects of his injuries, like the treatments at issue in Desmond. We therefore find it consistent with the LAD, the ADA, and their regulations that Caraballo’s total knee replacement surgery cannot qualify as a reasonable accommodation under the LAD.” 237 N.J. at 271.

In ruling against Caraballo, the Court took note of the fact that although Caraballo requested his employer to provide him with double knee replacement surgery, he never used the enforcement mechanism of filing a petition in the workers compensation court to seek entry of an order compelling the employer and its insurer to provide him the surgery. Specifically, he refused to comply with his employer’s requests to see doctors that could “determine unequivocally whether or not he could have surgery.” 237 N.J. at 260. When the employer’s chosen doctor authorized Caraballo’s knee surgery and told him to schedule a surgery date, he never called. Id. at 261. Even though Caraballo contacted his employer’ “several times to obtain authorization for double knee replacement surgery [he] never sought to enforce his right to the surgery in the workers’ compensation court.” Id. at 258. Each time he disagreed with what was offered by his employer or refused to comply with their requirements to receive treatment, he failed to file a complaint with the workers’ compensation court. Therefore, regardless of the Court’s ruling that an employer was under no obligation under the LAD to reasonably accommodate a worker by providing him or her with medical treatment, Caraballo’s failure under the WCA to compel the surgery was fatal to his LAD claim. 237 N.J. at 266.

STATE BILL SIGNED INTO LAW THIS MONTH REINFORCES THE PUBLIC POLICY GOALS OF THE DIANE B. ALLEN EQUAL PAY ACT BY PROHIBITING DISCRIMINATION AS APPLIED TO SALARY HISTORY OF JOB APPLICANTS

Published on: August 6, 2019 | by Mashel Law, L.L.C.

Assembly Bill 1094, which prohibits employers from screening applicants based on the applicant’s salary history, was signed into law on July 25, 2019 after passing in the New Jersey Assembly and Senate earlier this year. Under this new legislation, it shall be an unlawful employment practice for any employer:

(1) To screen a job applicant based on the applicant’s salary history, including, but not limited to the applicant’s prior wages, salaries or benefits; or

(2) To require that the applicant’s salary history satisfy any minimum or maximum criteria

THE CONTINUING VIOLATIONS DOCTRINE MAY SAVE HOSTILE WORK ENVIRONMENT CLAIMS OTHERWISE BARRED UNDER NEW JERSEY LAD’S TWO-YEAR STATUTE OF LIMITATION

Published on: July 26, 2019 | by Mashel Law, L.L.C.

Although the statute of limitations for filing a claim under New Jersey’s Law Against Discrimination (LAD) lapses after two years from the last act of discrimination, a plaintiff may still have a viable LAD claim under the continuing violation doctrine according to a recent Appellate Division decision in Mansour v. Brooklake Club Corp., 2019 N.J. Super. Unpub. LEXIS 1579 (N.J. App. Div. decided July 10, 2019).

Plaintiff Adel Mansour was employed as a cook for Defendant Brooklake Club (Brooklake) between 2003 and 2016. Id. at *2. He alleged that during the time he worked for Brooklake his supervisor harassed him because Mansour was Egyptian and Muslim. Mansour’s supervisor frequently made unwelcome comments to or around Mansour about former Egyptian President Hosni Mubarak and the Muslim Brotherhood and implied Mansour had ties to terrorist organizations and activities. Id. at *2-3. In March 2014, when Malaysia Airlines flight 370 disappeared, Mansour’s supervisor “joked” about the pilot being Egyptian and then hung a large world map in the kitchen on which he wrote “Adel, where is it?” in reference to the lost plane. Id. at *4. Mansour’s supervisor also continuously criticized Mansour for not eating pork and frequently referenced that Muslims do not eat pork for religious reasons, telling Mansour, “…you Muslims don’t know what you’re missing.” Id. at *5-6. Mansour felt singled out by this conduct and told his supervisor to stop on numerous occasions, but the comments continued. Id. at *4-5.

The trial court found Mansour’s hostile work environment claim untimely because most of the alleged discriminatory acts took place outside of the LAD’s two-year statute of limitations. Id. at *5. However, the Appellate Division agreed with Mansour that the trial court “misapplied the continuing violation doctrine and failed to recognize the cumulative pattern of ongoing harassment he suffered directly related to his religion and nationality.” Id. at *7.

NEW JERSEY FEDERAL DISTRICT COURT SAYS THAT ALTHOUGH A PLAINTIFF MAY USE COMPARATOR EVIDENCE TO SHOW HE WAS WRONGFULLY DISCHARGED BECAUSE OF HIS RACE, THE ONLY “VARIABLE” IN THE COMPARATOR EVIDENCE SHOULD BE THE RACE OF THE PLAINTIFF

Published on: July 19, 2019 | by Mashel Law, L.L.C.

Although a Plaintiff may attempt to prove his discrimination claim by showing how he was treated differently than similarly situated workers not of his protected class, e.g., race, according to a recent decision of the federal District Court of New Jersey there must be little or no difference in the offered comparator evidence other than the protected class characteristic of the Plaintiff. Wilson v. M & M Mgmt. Co., 2019 U.S. Dist. LEXIS 107955 (D.N.J. decided June 27, 2019). For example, in the race discrimination claim brought in Wilson, the Court required an African American Plaintiff to show there was no discernable difference between his conduct and those of the Caucasian coworkers he was comparing himself to other than their race. Unfortunately, for Aaron Wilson he was not able to do so.

Plaintiff Aaron Wilson worked as a driver for Defendant M & M Management Company which housed a thrift store located in West Berlin, New Jersey. Id. at *1. Wilson was terminated in January 2016, after which he filed a lawsuit against his employer alleging hostile, work environment, retaliation and wrongful discharge based on his African American race under both Title VII and the New Jersey Law Against Discrimination (LAD) Id. at *6-7. Wilson alleged that M & M terminated him in retaliation for his complaints about a white coworker’s racially discriminatory behavior toward him. Id. However, M & M argued instead that the actual reason for Wilson’s termination was his excessive documented disciplinary infractions over a period of two years. Id.

In its decision the district court emphasized that even though M & M met its burden of articulating a legitimate nondiscriminatory reason for firing Wilson based on his extensive disciplinary record, Wilson would still have opportunity to prevail on his claims if he was able to show the reasons offered by the employer for firing him were pretextual, and in fact he was actually terminated in retaliation for the exercise of his protected right to complain of a racially biased hostile work environment. Id. (citing to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for the proposition that once a plaintiff makes prima facie showing of discrimination and a defendant successfully refutes it, the burden shifts to the plaintiff to show that defendant’s reasons were pretextual). To show pretext, the relevant standard requires a plaintiff to “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them ‘unworthy of credence.’” Wilson at *11 (quoting Keller v. Orix Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997).

NJ APPELLATE COURT HOLDS PATTERN OF DISCRIMINATORY APPEARANCE-BASED PRACTICES MAY BE SUFFICIENT FOR SEXUAL HARASSMENT HOSTILE WORK ENVIRONMENT CLAIM IN ONGOING “BORGATA BABES” LAWSUIT

Published on: May 24, 2019 | by Mashel Law, L.L.C.

The Appellate Division of the Superior Court of New Jersey published an opinion on May 20, 2019, in which it reversed an Atlantic County decision dismissing a Law Against Discrimination (LAD) claim brought by a group of employees against the Borgata Casino, Hotel, and Spa in Atlantic City.

The employees, who were all hired to work as servers for the “Borgata Babes” program, allege that Borgata engaged in disparate treatment and sexual harassment, among other LAD violations, through its implementation of personal appearance standards which focus primarily on employees’ weights. Enforcement of these personal appearance standards was done through occasional weigh-ins, which ensured employees did not go above a set weight range during their employment. The standards were imposed on women who were pregnant as well as on women who were undergoing medical treatments that caused weight gain.

This week’s decision comes after a decade of litigation in which the claims were initially dismissed by the trial court. Schiavo v. Marina Dist. Dev. Co., LLC, 2013 N.J. Super. Unpub. LEXIS 2093. That initial dismissal was reversed in 2015 when the Appellate Division held that the trial judge erred in finding the record insufficient for a showing of a prima facie claim of sexual harassment hostile work environment discrimination. Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015).

GROWING MOVEMENT AGAINST DISCRIMINATORY HAIR-GROOMING POLICIES AND PRACTICES IN THE WORKPLACE

Published on: May 17, 2019 | by Mashel Law, L.L.C.

Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, recent attention has been given toward the issue of whether it is illegal discrimination for employers to ban certain hairstyles traditionally held by and associated with African-Americans. In New Jersey, a particularly brutal story surfaced in the news in December 2018 about a 16-year old African-American wrestler named Andrew Johnson who was forced to unnecessarily cut off his dreadlocked hair just minutes before his wrestling match by a Caucasian referee and in front of a gymnasium full of spectators. This story prompted outrage and stirred controversy over discriminatory hair-grooming policies and practices in schools and in the workplace.

There is a growing movement toward protection against discrimination based on hairstyle and texture in recognition of the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. In February 2019, the New York City Commission on Human Rights instituted a law that bans workplace discrimination based upon hairstyle. Just this week, the California Senate passed the “CROWN” Act (Create a Respectful and Open Workplace for Natural Hair), which seeks to add hairstyle and texture associated to race with California’s anti-discrimination laws. The bill, which was introduced by Senator Holly J. Mitchell, will now move on to the California State Assembly.

Speaking before the Senate’s vote, Mitchell noted that African-American men and women have had to go through expensive and dangerous chemical treatments to alter their hair to conform with Euro-centric norms in the workplace.

NEW JERSEY ENACTS NEW LAW OUTLAWING EMPLOYERS’ USE OF NON-DISCLOSURE AGREEMENTS TO SUPPRESS DISCLOSURE OF DISCRIMINATION CLAIMS AND SEVERELY CURTAIL THE USE OF FORCED ARBITRATION CLAUSES AND JURY WAIVER PROVISIONS

Published on: March 22, 2019 | by Mashel Law, L.L.C.

Clear evidence the seismic effects of the national #Me Too movement has reached the shores of New Jersey occurred when New Jersey Governor Phil Murphy recently signed into law S.121 which effectively stops employers from requiring employees to sign nondisclosure confidentiality agreements – commonly referred to as “NDAs” – when settling employment discrimination, harassment, or retaliation claims. The use of NDAs has become a notorious legal tool used to protect serial harassers and abusers from the shaming cleanse of public disclosure. Further, the law also severely limits an employer’s ability to impose forced arbitration clauses and jury waiver clauses on its employees.

Following other states such as California which have banned the use of NDAs in settlement agreements and employment contracts, proponents of S. 121 argue that it adds new protections for victims of serial abusers in the workplace. “Non-disclosure agreements have, for a long time, been used to silence and intimidate the victims of sexual assault and harassment,” said Senator Weinberg (D-Bergen), one of the law’s chief architects. “Too many victims have been forced to suffer in silence for far too long, leaving abusers to continue to prey on countless women with impunity. Limiting these so-called ‘confidentiality agreements’ will help lift the secrecy that allows abusers to carry on abusing and make our workplaces safer for everyone.”

S.121 has two important components. First, it renders any term in an employment contract or settlement agreement unenforceable against a current or former employee if it “has the purpose of concealing the details relating to a claim of discrimination, retaliation, or harassment.” Importantly, these broad limitations on NDAs apply to new agreements which are executed on or after the law’s effective date of March 18, 2019. While the new law does not appear to apply retroactively, the law’s restrictions would apply to new or renewed agreements with existing employees, and to modifications of previous agreements. However, NDAs regarding non-public trade secrets and proprietary information as well as non-competition provisions are specifically carved out from the law’s reach.

The Subtle Art of Age Discrimination and How to Spot it

Published on: April 13, 2018 | by Mashel Law, L.L.C.

Discrimination based on age is as pervasive a problem for the American workforce as it is tricky to prove. Employers’ efforts to avoid litigation have driven the development of a multitude of sneaky strategies to avoid liability under federal and state anti-discrimination laws. In fact, one of the largest technology firms in the world – IBM Corp. – recently demonstrated some of these tactics when they pushed out experienced, older employees to make way for younger, less-experienced hires. In just the last five years, IBM has eliminated 20,000 American employees aged 40 and over. This represents a whopping 60 percent of the company’s total job cuts during that time. A confidential company document obtained by the press explained explicitly that these cuts were made in order to achieve the “correct seniority mix” of its employees. To achieve this, IBM: (1) denied older workers information the company was legally required to disclose informing employees of their rights, (2) required workers to sign away their rights to have any complaints heard in a court of law, (3) used techniques in rating employee performance that punished those who had worked for IBM the longest, and (4) encouraged employees IBM had laid-off to seek another position within the company while simultaneously instructing managers not to hire them, and (5) laid-off older employees only to hire some back as independent contractors to do the same work at a greatly reduced paycheck, among other malevolent behaviors.

In New Jersey, an age discrimination claim is brought under the state’s Law Against Discrimination (NJLAD). The right to be free from discrimination is a civil right, and NJLAD covers employees and prospective employees from discrimination in the hiring and employment processes. A plaintiff bringing a claim of age discrimination will have to prove their prima facie case, consisting of four parts. First, the employee is a member of a protected class. In age discrimination, this typically means the employee is of an advanced age. However, the NJLAD also protects young workers from discrimination. Second, the employee was preforming their job at a level that met the employer’s legitimate expectations. Third, some adverse action was taken against the employee. This may include being fired, demoted, failing to promote, bad performance review or reference, among others. Finally, a plaintiff must have proof of causation. Meaning the adverse action was taken because of the employee’s age.

Causation can be established in many ways. The above example at IBM is an extreme one because it is unusual for there to be a paper trail, or even an explicit reference to age. Most age discrimination is more subtle. Employers have no doubt been warned not to call a worker “old” outright. Instead, comments made are somewhat nuanced and could be taken in more than one way. Consider “lacking in energy,” “not being up to date,” or “set in in his [or her] ways,” each of these phrases has been judged to be coded language or ‘dog whistles’ for ageism by New Jersey courts. Other ways to establish causation include: being replaced by someone substantially younger or older than oneself; suddenly receiving bad performance reviews after a long track record of good performance; the cutting of job duties or hours; attempts to force retirement such as threats to employee benefits or pension; and many more. Once the facts of the prima facie are shown to be plausible, the defendant gets the opportunity to offer a legitimate, non-discriminatory reason for the adverse employment action such as bad performance. The plaintiff may then bring proof that the reason given by the employer is actually pretext for discrimination, and not the true reason for the employer’s action.

NEW JERSEY LAW PROHIBITS ASSOCIATION DISCRIMINATION

Published on: January 23, 2018 | by Mashel Law, L.L.C.

Employers can be held liable under Title VII of the Civil Rights Act of 1964, the American with Disabilities Act (ADA) and New Jersey’s Law Against Discrimination (“LAD”) for discriminating against an employee because of the employee’s association with a member of a protected group (e.g., sex, race, national origin, religion, disability, etc.). This means an employer is prohibited from taking adverse employment action against a worker in the form of a hostile work environment, demotion, failure to promote, cut in pay, wrongful discharge, etc., where for example: (a) a Caucasian worker married an African American or other person of color; (b) a worker gets engaged to a Muslim; (c) a female employee gives birth to a child with disabilities; or (d) an employee’s spouse becomes afflicted with a potentially terminal disease.

Courts have found protection against “association discrimination” under New Jersey’s LAD”. See e.g. Downs v. U.S. Pipe & Foundry Co., 441 F. Supp. 2d 661, 665 (D.N.J. 2006) (“In the absence of any contrary authority, this Court concludes that the New Jersey Supreme Court would hold that NJLAD bars employment discrimination based upon a person’s association with a person with a disability”) (citing O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249 (App. Div. 1998) and Berner v. Enclave Condo. Ass’n, Inc., 322 N.J. Super. 229 (App. Div. 1999), cert. denied, 162 N.J. 131 (1999)); see also Pailleret v. Jersey Constr. Inc., 2011 U.S. Dist. LEXIS 42364 *22 (D.N.J. Apr. 19, 2011) (“The NJLAD affords protection to both disabled persons as well as individuals associated with disabled persons”).

In O’Lone, the New Jersey Appellate Division held “where the plaintiff is wrongfully discharged for associating with a member of a protected group, that it is the functional equivalent of being a member of the protected group”. O’Lone, 313 N.J. Super. at 255 (emphasis added). Downs, supra., is very instructive in this matter. In that case, the pertinent facts were set forth as follows: