Law Against Discrimination

Bill to Expand New Jersey Family Leave Act to Cover Bereavement Passes in Assembly

October 31, 2024 | Smith Eibeler LLC

On September 26, 2024, the State Assembly passed a Bill (A3505) expands the circumstances under which family leave can be taken under the New Jersey Family Leave Act to include “bereavement” leave for parents who suffer the death of a child or failed adoption. Under an amended law, an employee may take bereavement leave as an additional reason for family leave, which includes the “bereavement purposes” to include the death of a child, pregnancy loss, and failed fertility treatment.

Currently, under the New Jersey Family Leave Act, eligible employees may take up to 12 weeks of job-protected leave within a 24-month period for reasons that include:

To care for or bond with a child, as long as the leave begins within 1 year of the child’s birth or placement for adoption or foster care;

Supreme Court Invalidates State Workplace Confidentiality Directive Regulation

May 6, 2024 | Smith Eibeler LLC

The New Jersey Supreme Court issued a decision today invalidating a state employment regulation that required state workplace investigators to request victims and witnesses in harassment investigations to keep all aspects of the investigation confidential. The Court held that the challenged regulation, N.J.A.C. 4A:7-3.1(j), was unconstitutionally overbroad and struck the relevant portion concerning the confidenitialty directive. The decision is a major victory for employees and their rights to speak freely and openly about issues of workplace discrimination and sexual harassment.

The challenge arose out of an employment lawsuit brought by a Department of Transportation employee who complained of sexual harassment and retaliation. After complaining to the Civil Service Commission about the sexual harassment, the employee, Viktoriya Usachenok, was interviewed by an investigator from the Division of Equal Employment Opportunity/Affirmative Action (“EEO/AA”) who required that Ms. Usachnanok sign a confidentiality agreement prohibiting her from speaking to anyone outside the state about her complaints of sexual harassment.

In her sexual harassment lawsuit, Ms. Usachenok brought a claim for declaratory judgment to invalidate a state regulation that required EEO/AA investigators to impose strict confidentiality upon victims and witnesses of incidents of harassment within state employment. In response to the lawsuit, the Civil Service Commission amended the regulation to require its EEO/AA investigators to request victims and witnesses to keep all aspects of their investigation confidential. The amended regulation was also challenged as a violation of state employees’ rights under the First Amendment and an unlawful restraint of protected rights under the New Jersey Law Against Discrimination.

NJ State Troopers File Lawsuit Following Years of Homophobic and Racial Harassment

October 9, 2021 | Smith Eibeler LLC

New Jersey’s Law Against Discrimination provides some of the strongest protections against unlawful workplace discrimination against individual members of protected classes such as race, gender and sexual orientation. Unfortunately, even with strict anti-discrimination laws and a state-wide push towards inclusivity, numerous instances of homophobic workplace discrimination and harassment continue to rise. Recently, two New Jersey State Troopers have filed suit in the Monmouth County Superior Court, alleging years of workplace discrimination within the NJ State Police Department, based on their sexual orientation.

Lieutenants John Hayes and Jamie Lascik joined the State Police in 2001, and have worked closely with New Jersey and the New Jersey State Police (“NJSP”) to create an inclusive and diverse workplace. Hayes, who is an openly gay man, and Lascik, who is a gay African American woman, alleged repeated instances of discrimination based on their sexual orientation. Their suit alleges five violations of the New Jersey Law Against Discrimination and provides detailed situations where supervisors and other employees subjected them to ongoing harassment for their sexual identity. As summarized in the lawsuit, the “ongoing harassment and disparate treatment constitute a continuing violation,” of the New Jersey Law Against Discrimination, and the situation consisted of a pattern of retaliatory hostility, recurring intimidation, and differential treatment by supervisors over the course of many years, up to and including 2021.

The New Jersey Law Against Discrimination is one of the most comprehensive anti-discrimination laws in the country. It prohibits employment discrimination and bias-based harassment on the basis of sex, sexual orientation, race, and multiple other factors. The New Jersey Law Against Discrimination also prohibits both the creation and allowance of a hostile work environment that occurs when an employee shows that their severe and pervasive harassment would not have occurred but for the employee’s protected class membership status, and that a reasonable person of the same protected class would believe that the conditions of employment have been altered to where work environment is hostile or abusive. A hostile work environment based on sexual orientation occurs when an employee is subjected to harassing and unwelcome conduct that occurs because of the employee’s sexual orientation.

Hudson County Prosecutors Office Employees to Be Disciplined for Inappropriate Social Media Posts

September 18, 2021 | Smith Eibeler LLC

Employees within the Hudson County Prosecutor’s Office could face serious disciplinary action as a result of a workplace complaint investigation conducted by an outside law firm in response to unlawful employee conduct. The investigation was prompted by a series of offensive social media posts shared by Hudson County Prosecutor’s Office employees, posted on Facebook and within their internal workplace messaging app, “Slack”.

Under New Jersey law, employers must maintain an effective policy against unlawful harassment and discrimination at the workplace. With an effective anti-harassment policy in place, harassment investigations may shield an employer from hostile work environment claims under the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination is one of the nation’s strongest legal protections for employee civil rights against discrimination and threats of harassment, including sexual harassment. The New Jersey Law Against Discrimination requires employers to investigate all complaints of harassment and discrimination promptly, thoroughly and completely.

Serious hostile work environment concerns emerged at the Hudson County Prosecutor’s Office after racist jokes’ and offensive social media comments raised tensions amongst assistant prosecutors. In March 2021, the initial internal investigation began with an examination of Assistant Prosecutor Bill Specht and Agent Kelly Sisk over “offensive and sickening” posts the two allegedly made on social media and shared via Slack. Screenshots from March 2021, were shared of Specht’s conversations within the workplace Slack chatroom, writing that “Infoshare identifies as Mexican. It sleeps when the sun is hottest.” Specht additionally shared a number of racially offensive Facebook posts, following the police killing of George Floyd and the shooting of Jacob Blake. These posts alluded to the exoneration of law enforcement officials in officer-involved shootings, an especially controversial subject for someone in his position.

Legal Protections for Covid-19 Related Workplace Leaves

August 19, 2021 | Smith Eibeler LLC

For the past year, employees have been undergoing medical screenings and answering questions about their personal health to gain access to their physical workplaces. Employers can lawfully request their health status or require them to take leave from work if they appear to have symptoms of COVID-19. Despite laws protecting employee privacy and the dignity of being in control of our own medical decisions, the public health emergency resulting from the spread of COVID-19 has drastically changed the landscape when it comes to employment decisions based on disability or perceived disability, the duty to reasonably accommodate and the prohibition against workplace retaliation.

The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces workplace anti-discrimination laws, including the Americans with Disabilities Act and the Rehabilitation Act. The Americans with Disabilities Act makes discrimination based on disability illegal and protects from retaliation individuals who exercise their rights under that law. Other laws, including state and local laws, such as the New Jersey Law Against Discrimination and the New York City Human Rights Law, provide employees with additional protections. Anti-discrimination laws continue to apply during the time of the COVID-19 pandemic, but they must coexist with guidelines released by the Centers for Disease Control (CDC) and state and local health authorities concerning, among other things, an employer’s right to access employees’ medical information and perform health screenings in the workplace. The intertwining of anti-discrimination laws and public health regulations in the current climate has created a question about whether a COVID-19 infection or perceived infection qualifies an employee for anti-discrimination protection based on disability. The answer will be different depending on whether federal or state law governs the employment relationship, and if state law, which state.

Disability discrimination occurs under the federal Americans with Disabilities Act when an employer treats an employee unfavorably because he or she has a disability, has a history of a disability (such as cancer that has entered remission), or because the employer believes the employee has or used to have a disability. However, not all medical conditions equate to disabilities under the legal definition of the term. A person can show that he or she has a disability in one of three ways: (1) he or she has a physical or mental condition that substantially limits a major life activity (such as walking, hearing, learning, or limits the operation of a major bodily function); (2) he or she has a history of such a disability (past depression that is currently being successfully treated); or (3) he or she is subject to an adverse employment action (such as demotion, termination or a change in job duties or pay) due to the employer’s belief that he or she has a physical or mental impairment that is more than something minor and temporary.

Supreme Court: Showing of Adverse Employment Act Not Required For Failure-to-Accommodate Disability Claim

June 17, 2021 | Smith Eibeler LLC

In a landmark decision, the New Jersey Supreme Court has held that employees who suffer from a disability do not need to show an adverse employment action in order to prevail on a failure to reasonably accommodate claim. The case is being considered by New Jersey employment lawyers as a major victory for workplace rights of disabled employees.

The case was brought under the New Jersey Law Against Discrimination, which is widely considered one the country’s strongest state anti-discrimination laws in the country. While the Law Against Discrimination mirrors the Americans With Disabilities Act (“ADA”), it does provide for some greater protections than the federal counterpart. However, both laws share the same remedial goals to allow disabled persons to maintain gainful employment by requiring employers to provide reasonable accommodations that will allow them to perform the essential functions of the job. Accommodations are not considered “reasonable” if they impose an undue hardship on the employers business operations, and thus not required. To establish a prima facie claim when he or she is able to show that he or she: (1) qualifies as an individual with a disability or is perceived as having a disability; (2) is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate his or her disabilities.

In the case entitled, Richter v. Oakland Board of Education, Nos. A-23 September Term 2019, 083273 (June 8, 2021), a teacher who suffered from Type-1 diabetes, sued her employer after experiencing a hypoglycemic event in her classroom during she fainted and hit her head on a science laboratory table. As a result of the fall, Ms. Richter sustained serious and permanent life-altering injuries. Ms. Richter blames the school for the injuries because they had refused her request for an accommodation to eat lunch earlier in the day to maintain proper blood sugar levels. According to Ms. Richter, if she was granted the requested reasonable accommodation, she would not have suffered the hypoglycemic event and would not have suffered the significant injuries.

Ocean City Beach Patrol Accused of Rampant Sexual Harassment and Assault of Teen Lifeguards

April 23, 2021 | Smith Eibeler LLC

For many teens, a summer job is a rite of passage, a way to earn money and gain independence, and start the transition into adulthood. For many teen girls working for Ocean City Beach Patrol, their summer lifeguarding jobs allegedly also came with unwanted groping, sexual harassment and sexual assault at the hands of their male supervisors. In recent news, local media sources have reported that a viral Instagram account called @ocbp_predators has led the Cape May County Prosecutor’s Office to investigate hundreds of allegations of sexual harassment and assault by members of the Ocean City Beach Patrol (OCBP). Reading through the accounts is disturbing. According to the anonymous posters, most of the misconduct was perpetrated by adult men in their thirties and forties against teenaged female lifeguards working for the OCBP.

Providing a link to RAINN, the national sexual assault hotline, the Instagram account contains allegations of male guards, some of whom are also teachers in Ocean County public schools, being involved in incidents where their teenaged direct reports were continuously sexualized at work and plied with drugs and alcohol at after-work parties, where often they would wake up unaware of what had happened to them the night before. Several of the Instagram posts referred to older male lifeguards repeatedly citing New Jersey’s age of consent, which is 16, to assert their entitlement to have sexual contact with the younger girls they supervised. However, New Jersey bars any adult in a position of authority having sexual contact with employees under the age of 18.

It seems clear that if the allegations against the male lifeguard supervisors are true, they could be facing criminal penalties, but that is not always the case. Sexual assault against teenagers is a significant societal problem that often goes unaddressed. According to TeenHelp.com, teenagers account for at least half of all reported instances of sexual abuse, with teens of working age (16-19) being over three times as likely as the general public to be victims. Additionally, once victimized, the same teen is more likely to experience further abuse, and when the victim is a high school aged female, she is more likely than others to develop eating disorders, risky sexual behaviors, unwanted pregnancies, and suicidal ideation. Despite these staggering statistics, less than one-third of sexual assaults against teens are reported. The low reporting rate may be due in part to the fact that only about half of abusers are eventually arrested and a measly 16% are imprisoned. Of those who do go to jail for their crimes, the average sentence is about 4 months. Approximately 80% of jailed rapists report that their victims were under the age of 18. What laws, other than the criminal code, are there to protect these girls?

How Political Rhetoric Has Exacerbated Discrimination Towards Asian Americans During COVID-19 Pandemic

March 10, 2021 | Smith Eibeler LLC

In January, during a television news interview, then President Donald Trump said about the novel coronavirus, “It’s one person coming in from China.” That one remark, seemingly a purely geographical description of the virus’ origin, became the starting point from which our former President attempted to shift blame from his doorstep to China’s for mounting deaths, unemployment, shuttered businesses, food and housing insecurity and widespread panic. By convincing his supporters that our country’s pandemic response was actually Americans being forced to fight a war against an invisible Chinese invader, Trump caused a drastic shift in our political climate that resulted in Asian Americans becoming targets of hate crimes, harassment and discrimination.

Can one person’s words, even if made publicly, really cause an entire race of people to suffer abuse and harassment? In short, yes; harassment or much worse. All we need to do to know that is to revisit the history of Nazi Germany, the Yugoslav Wars of the 1990s, the Rwandan genocide in 1994, and the American response to the Japanese after World War II. Xenophobic rhetoric, especially when propagated by a political leader, can absolutely lead to hate and discrimination and in the worst cases, extreme violence. After the September 11, 2001 terrorist attacks, the Equal Employment Opportunity Commission (EEOC) tracked the number of bias complaints filed by Arab, Muslim, Middle Eastern, South Asian and Sikh workers in the U.S. and saw a 250% increase in the wake of 9/11. This drastic response occurred despite then President George W. Bush urging people not to discriminate.

In contrast, consider Trump’s narrative around the coronavirus. In April 2020, at a press briefing, Trump linked the unfolding pandemic to his conservative immigration policy: “Therefore, in order to protect American workers, I will be issuing a temporary suspension of immigration into the United States”. In May 2020, as the pandemic worsened on U.S. soil and Trump was taken to task for his perceived nonchalance around the virus, he responded, “Intelligence has just reported to me that I was correct, and that they did NOT bring up the Corona Virus subject matter until late into January, just prior to my banning China from the U.S.” In a tweet that same month, “Great reviews on our handling of Covid 19, sometimes referred to as the China Virus.” In July 2020, as the country approached 4 million cases of Covid-19, unemployment was rising, and growing numbers of citizens were becoming food or housing insecure, Trump tweeted, “We are United in our effort to defeat the Invisible China Virus, and many people say that it is Patriotic to wear a face mask when you can’t socially distance. There is nobody more Patriotic than me, your favorite President!”Later that month, “You will never hear this on the Fake News concerning the China Virus, but by comparison to most other countries, who are suffering greatly, we are doing very well – and we have done things that few other countries could have done!” Remembering Herman Cain during a White House briefing after his death from Covid-19 last year, Trump said “he passed away from the thing called the China virus.” In August 2020, as the U.S. reached 6 million cases of Covid-19, Trump referred to the virus publicly as “the China virus” at least another 4 times, including during a virtual rally in Nevada when he said, “I mobilized the largest response since World War II to fight the China virus and we are really doing well. Our numbers are excellent, really really good, and hopefully, we’re rounding the final turn on that disaster given to us by China.” As U.S. deaths passed 200,000 in September 2020, Trump linked the coronavirus to China a dozen more times, often by using wartime analogies and imagery to emphasize his patriotism and to cast the virus as a hostile foreigner. During rallies in North Carolina, Nevada, Michigan and Florida, he referred to it as “the invisible enemy” and made repeated references to defeating “the China virus.” During a rally in North Carolina, he stated “We will end the pandemic from China. We will end our — our plague from China.”

Sexual Assault At Women’s Prisons Violates the New Jersey Law Against Discrimination

February 18, 2021 | Smith Eibeler LLC

“There’s a long and ugly history at Edna Mahan,” said New Jersey Attorney General Gurbir Grewal. He was referencing not only the January 11, 2021 attack in which prison guards wearing riot gear beat, pepper sprayed and sexually assaulted the female inmates housed at the Edna Mahan Correctional Facility for Women in Clinton, New Jersey. The long history of sexual abuse at Edna Mahan dates back at least to the early 1990s, and a searing report issued in the Spring of 2020 by the Department of Justice has exposed the prison as a hostile and abusive environment, not because of the inmates’ crimes, but because of the guards whose duty it has been to house, feed and protect these women.

Around midnight on January 11, 2021, over two dozen officers forcibly removed the women inmates from their cells, resulting in broken bones, concussions, and in at least one instance, forcible sexual penetration. Although we typically protect the privacy of harassment and assault victims, some of the women who were attacked have chosen to come forward publicly. Inmate Ajila Nelson said she was beaten and sexually assaulted in her cell during the extraction. Desiree Dasilva was punched repeatedly in the head resulting in a broken eye socket and said an officer left a boot print on her arm. Emmalee Dent was punched in the head approximately twenty-eight times by one of the guards as she pressed herself against a wall and attempted to protect herself from the blows. Inmate Faith Haines told a local media outlet that the attack started when another prisoner became upset that her cell had been searched while she was outdoors for recreation. Reportedly, Sean St. Paul, an administrator who was suspended in the wake of the attack threatened the inmates with similar discipline “every night” that they “acted up”.

A few weeks later, three prison guards – Sergeant Amir Bethea, Sergeant Anthony Valvano and Officer Luis Garcia – were accused of filing false reports in an effort to cover up the attack and were charged with official misconduct, tampering with public records, and Garcia was charged with aggravated assault for the beating of Emmalee Dent.

Manchester HS Basketball Star Exercises First Amendment Rights In Response to BOE’s Attempt to Silence Her

February 11, 2021 | Smith Eibeler LLC

In Manchester, a township in Ocean County, New Jersey where 92% of its approximately 43,000 residents are white, a star high school basketball player’s attempt to speak out against issues of race discrimination and inequity was shut down by the Board of Education. At the most recent Board meeting, star basketball player Destiny Adams, presented a thoughtful speech to the Board to persuade them that the girls basketball team should be permitted to wear Black Lives Matter sweatshirts during the pregame warmup to their first game of the season, which took place Tuesday, January 26. Destiny was supported at the meeting by her mother, an attorney, and her father, the principal of Manchester High School, both of whom also spoke. Without discussing her proposal among the members of the Board or taking an official vote on it, the Board denied her request, stating that warmup gear may only display the school’s name.

In speaking to news media, Destiny said of the Board’s decision, “They told me no, but that can’t really silence me, so we needed to find a way around it”. In fact, Destiny and most of her teammates wore Black Lives Matter sweatshirts prior to their season opener last night against Jackson Liberty High School despite the Board’s ruling. Destiny and another teammate also wore socks that said Black Lives Matter, while another player wrote Black Lives Matter on her sneakers.

According to the New Jersey State Interscholastic Athletic Association, what players wear during pregame warmups is determined at the school’s discretion. From a legal standpoint, the question is how to balance public school students’ First Amendment right to freedom of expression with a school’s right to ensure the school environment is not disrupted and the rights of one student do not infringe on the rights of another.