Law Against Discrimination

New Jersey Supreme Court: Treating Doctor Permitted to Testify Concerning Employee’s Disability for Discrimination Claim

May 2, 2016 | Smith Eibeler LLC

The New Jersey Supreme Court has ruled that an employee can show they suffered from a disability (as defined by the law) through the testimony of their treating physician. This is a significant win for victims of disability discrimination, who often do not have the finances to pay for expensive medical expert testimony necessary for their case.

In the matter of Delvecchio v. Township of Bridgewater, the employee claimed she was unlawfully terminated on the basis of disability in violation of the New Jersey Law Against Discrimination. The employee was employed as a dispatcher for the Township of Bridgewater and developed inflammatory bowel syndrome (IBS), panic attacks and anxiety during her employment, which she claimed required certain accommodations from her employer. On September 16, 2009, the town terminated the employee’s employment, claiming neglect of duty and chronic/excessive absences, after the employer denied her requests for accommodations. At trial, the court prohibited the employee from having her treating physician testify to her diagnosis and treatment. As a result of the court’s adverse evidentiary ruling, the employee was unable to offer evidence showing she was disabled, which resulted in her losing her entire case.

The case was based upon disability discrimination which his prohibited under the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination prohibits unlawful discrimination based on a disability unless the nature and extent of the disability reasonably precludes the performance of the job position. An employee suing under the LAD must prove, inter alia, that he or she was disabled as defined in the act. When the disability is not readily apparent, an employee must present expert medical evidence to assist the jury in understanding whether the condition alleged is a disability under the law

Appellate Division Remands Sexual Orientation Discrimination Case Back for Trial

May 20, 2013 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed a trial court’s decision dismissing an employee’s claims for sexual orientation discrimination under the New Jersey Law Against Discrimination. In remanding the case for trial, the Appellate Division found that the school employer’s motivation for forcing the employee teacher to resign is a question of fact for the jury to decide at trial.

In the case, Savoie v. The Lawrenceville School, Michael S. Cary and Catherine Boczkowski, Mr. Savoie, a homosexual, was employed as a teacher at The Lawrenceville School in 1982 until June 2003. During his approximate twenty (20) year career, Mr. Savoie received many awards and even held the position of Department Chair at one point. In 1991, Mr. Savoie’s domestic partner, Richard Bierman, moved into his on-campus housing with him. At this point, the two of them began an openly gay lifestyle. Thereafter, Mr. Bierman began perceiving that he was being discriminated against by three male faculty members and one female administrator. For example, Mr. Bierman, testified that these individuals were “very nasty” to him and the administrator told him that “[she] did not approve of [their] lifestyle.”

In June, 2002, the school’s grounds crew entered Mr. Savoie and Mr. Bierman’s on-campus housing to repair a water main break outside the home. Because it was emergent, the grounds crew entered the house despite neither Mr. Savoie nor Mr. Bierman being home. When grounds crew entered the house, they discovered certain sexually explicit objects in the basement, such as four pieces of apparatus hanging from the ceiling on chains, videotapes, a computer of the shelf, a tripod without a camera and KY brand lotion. A year later, in June 2003, the new Buildings and Grounds Director began replacing old condensing units. Two employees of the ground crew advised that they were uncomfortable about returning to the home as a result of what they saw the previous year. Ultimately, one of the employees went in the house and reported that he saw similar sexual objects that he had seen the year prior.

Did ex-Rutgers Basketball Coach Mike Rice Create an Illegal Hostile Work Environment in Violation of the New Jersey Law Against Discrimination?

April 4, 2013 | Smith Eibeler LLC

Rutgers University terminated its basketball coach in the wake of ESPN’s broadcast of a videotape showing him physically and verbally abusing players during practice. Public opinion seems nearly unanimous that Mike Rice’s conduct warranted his termination, but the question remains did he create an unlawful hostile work environment under New Jersey Law Against Discrimination?

New Jersey has some of the strictest anti-discrimination and anti-harassment laws in the United States. Most notably, New Jersey’s Law Against Discrimination outlaws unlawful employment discrimination against any person on the basis of protected characteristics, which includes sex, sexual orientation, national origin and others. In 2007, the New Jersey Supreme Court in a case called L.W. v. Toms River Regional Board of Education, 189 N.J. 381 (2007) extended the workplace protections provided under Law Against Discrimination to situations where schools fail to stop severe and pervasive bullying based upon protected characteristics such as sex, sexual orientation and national origin. This means that if a school permits severe and pervasive harassment based upon a protected characteristic, the school can be found liable. Moreover, if the school knows or should know of the existence of unlawful discrimination or harassment, the law requires that the school investigate, remediate and prevent it from happening again.

The video shown by ESPN of several Rutgers basketball practices reveals numerous incidents of Mike Rice pushing, kicking and throwing basketball balls at players. It also depicts Mike Rice yelling gay slurs at players calling them “faggots” and other inappropriate comments. ESPN has also reported that Mike Rice regularly called one of his former players who transferred to Rhode Island, Gilvydas Biruta, names relating to his national origin of Lithuania and gay slurs. Former Rutgers assistant coach, Eric Murdock, who is anticipated to file a lawsuit against Rutgers for unlawful retaliation and wrongful termination, has alleged that Mike Rice would constantly scream at Mr. Biruta by using his national origin and gay slurs. For example, Mr. Murdock says that Mike Rice called Mr. Biruta a “soft-ass Lithuanian bitch,’ ‘soft-ass Lithuanian pussy’ and ‘Lithuanian faggot.'” Mr. Biruta told ESPN that he took offense to Rice’s name calling and insults stating, “If you’re going to criticize me as a basketball player, I’m OK with that,” he said, “but he would criticize me as a person.” Mr. Biruta also told ESPN that the main reason he transferred was because of Mike Rice’s treatment of him.

COURT FINDS EMPLOYER’S ALCOHOL POLICY IMPOSED ONLY ON RECOVERING ALCOHOLICS IN VIOLATION OF THE NEW JERSEY LAW AGAINST DISCRIMINATION

March 1, 2013 | Smith Eibeler LLC

The New Jersey Appellate Division decided that a company’s mandatory program and policy implemented only against employees suffering from alcoholism is a violation of the New Jersey Law Against Discrimination. In A.D.P. v. ExxonMobil Research Company, ExxonMobil Research and Engineering Company (Exxon) forced employees identified as recovering alcoholics to sign a contract that required only those employees to submit to mandatory clinical drug testing for two (2) years and monitoring for an additional three years. Other employees were not subject to drug or alcohol testing except for cause. In reversing the lower court’s grant of summary judgment in favor of Exxon, the Appellate Division determined that the additional terms and conditions of employment imposed by Exxon based on Plaintiff’s disability of alcoholism constitutes a claim for disability discrimination.

Plaintiff began working for a predecessor company of Exxon in 1978 as a research technician. She continued with Exxon and worked for a total of twenty-nine years. Plaintiff was consistently ranked as a top performer and received eight promotions from 1983 through 2005 becoming a Senior Research Associate. After the death of Plaintiff’s husband in 2004, she suffered from depression and other medical conditions. In August of 2007, Plaintiff disclosed to a nurse at Exxon that she was an alcoholic and planned to check herself into an inpatient rehabilitation program in order to receive treatment for her alcohol dependency and depression. Plaintiff successfully completed inpatient rehabilitation at Carrier Clinic and outpatient treatment at Hunterdon Medical Center. Before Plaintiff was allowed to return to work at Exxon, she was required to sign an after-care contract pursuant to Exxon’s company-approved after-care program. The after-care contract identified Plaintiff as an employee recovering “from chemical dependency” and mandated she participate in the after care program, totally abstain from alcohol and drugs not prescribed by a physician, submit to clinical substance testing for a minimum of two years after completion of a Primary Treatment Program and be monitored for an additional three years. The mandatory testing was to be periodic and unannounced. The policy applied to Plaintiff also stated that an employee suffering from alcohol or drug dependency that refuses rehab, fails to respond to treatment, or fails to exhibit satisfactory work performance would be disciplined up to and including termination.

In fear of losing her job, Plaintiff signed the after-care contract and submitted to nine (9) random breathalyzer tests between October 29, 2007 and August 20, 2008. Exxon had no reasonable cause to believe Plaintiff had been drinking alcohol at work or was intoxicated when these breathalyzer tests were administered. The tests were administered solely because of the after-care contract Plaintiff was required to sign as a recovering alcoholic. On August 22, 2008, Plaintiff was forced to take yet another “random” breathalyzer test. This test produced blood alcohol concentration (BAC) readings of .047 and 0.43.3. These readings are well below the threshold BAC of 0.08 set by New Jersey law as driving under the influence. Plaintiff was terminated on August 26, 2008. Exxon articulated that the only reason Plaintiff was terminated was because she violated the after-care contract in having a positive test. Exxon confirmed that, “an employee’s status as an alcoholic is the lone trigger for requirements of total abstinence and random testing without cause.” The company also confirmed that Plaintiff performance had absolutely nothing to do with her termination and that even if she was in the top 1 percent of her group, she would still have been terminated for failing the test.

Is Houston Rockets’ Royce White’s Request For His Own Doctor to Have Final Say As to Whether He Can Play a Reasonable Accommodation under the Americans with Disabilities Act?

February 1, 2013 | Smith Eibeler LLC

HBO Real Sports aired a story last night about Houston Rockets rookie Royce White and his ongoing battle for the Houston Rockets to provide him his requested reasonable accommodations under the Americans with Disabilities Act. White suffers from mental health disabilities, including Generalized Anxiety Disorder and has not been able to practice or play a game as a result of not being provided his requested for reasonable accommodations.

After a storied career at Iowa State, White was drafted by the Houston Rockets with the 16th pick in the 2012 NBA draft. Prior to the draft, the Houston Rockets, along with other NBA teams, were aware of White’s mental health disabilities and the risks associated with his disabilities that could impact his ability to perform in the NBA. After being drafted, and after signing a 3.3 million dollar contract, White has not been able to play because he believes he has not received the requested accommodations he needs for his disability.

White has requested that the Houston Rockets provide him a medical health protocol as a reasonable accommodation under the Americans with Disabilities Act. More specifically, White has asked for a driver to drive him to all NBA games, which Houston has agreed to provide him. The current sticking point between White and the Houston Rockets is White’s request to have an independent doctor have the final say as to whether White is medically able to play a particular game. White says that this is necessary because the Houston Rockets’ doctors work for the Houston Rockets and therefore have the Houston Rockets’ best interest and not his in mind when making the decision as to whether he is medically able to play. Houston Rockets will not grant this particular request because they feel it is unreasonable. After talks concerning this request hit a standstill, the Houston Rockets suspended White on January 6, 2013 and have stopped paying him his 3.3 million dollar salary.

NEW JERSEY COURT DENIES EMPLOYER’S MOTION FOR SUMMARY JUDGMENT IN AGE DISCRMINATION CASE

August 15, 2012 | Smith Eibeler LLC

The United States District Court for the District of New Jersey denied defendants motion for summary judgment in favor of the employee. The court held that that the Plaintiff employee established a prima facie case of age discrimination under the New Jersey Law Against Discrimination (NJLAD) finding ambiguity in the terms of his termination and defendants different reason for termination in summary judgment raised genuine issues of material facts and potential pretext for discrimination. Although the Court concluded there was no direct evidence of age discrimination, the Court used the McDonnell Douglas burden shifting analysis to determine that defendant’s stated non-discriminatory reason for Plaintiff’s termination could be a pretext for age discrimination in violation of the NJLAD.

In Buchholz v. Victor Printing Inc., the Plaintiff, Mr. Richard Buchholz worked at Victor Printing Inc. as a pressman from June 1986 through 2006. In 2006, Victor Printing reduced Mr. Buchholz’ hours to three days a week claiming that there was less work available for Mr. Buchholz because he was not trained on the new multi-color press machines that Victor Printing had acquired. Following the reduction in hours, Plaintiff accepted a full time job as a driver and his compensation remained the same at $17.50 per hour. He was then 63 years old. In 2008, Mr. Buchholz survived a lay off in which eight other Victor Printing employees were terminated.

A series of incidents occurred in the five months preceding Mr. Buchholz’ termination involving complaints from individuals who came in contact with Mr. Buchholz while he was driving the Victor Printing van. An individual called Victor Printing and complained about an encounter he had with Mr. Buchholz where Mr. Buchholz confronted the driver about his driving and got out of the van to see if it had been hit. Another individual called and complained Mr. Buchholz had cut him off while exiting the New Jersey Turnpike nearly causing an accident. A customer also complained that Mr. Buchholz had inappropriately complained about Victor Printing when Mr. Buchholz told the customer the boxes were too heavy and Victor Printing never sent anyone to help him. On October 15, 2009, the day before Mr. Buchholz’ termination, Mr. Buchholz hit a parked truck belonging to a large client of Victor Printing, Edmunds Direct Mail. The truck and the Victor Printing van were damaged and Mr. Buchholz failed to report the incident to Victor Printing or to Edmunds Direct Mail.

Appellate Division Affirms Award for Retaliatory Discharge in Violation of the New Jersey Law Against Discrimination Despite Finding there was No Discrimination on the Basis of Race

July 13, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently affirmed a trial court’s judgment awarding plaintiff, Mr. Anthony Onuoha, a total of $1,092,424.25 in damages, attorneys’ fees and costs on his claim for discrimination on the basis of race and retaliatory discharge in violation of the New Jersey Law Against Discrimination (“NJLAD”).

In this case, Onuoha v. Roche Molecular Systems, Inc., Mr. Onuoha began his employment with Roche Molecular Systems (“Roche”) in February 2004 as a scientist, validating Roche diagnostic test kits used to screen blood for infectious diseases. Mr. Onuoha is an African-American male and was originally hired at Roche through a staffing agency as a temporary employee. In June 2004, Mr. Onuoha applied for an open position at Roche as a senior scientist. Mr. Onuoha accepted the position at the $75k annual salary and began working with the production validation team. He was the only African American working within that group.

In February 2005, Mr. Onuoha received a raise of 4.75% due to a rating of “3” on his annual performance review, which signified he had fully performed his employment objectives. Soon thereafter, Mr. Onuoha discovered that employees within the production validation team hired after him were being paid higher salaries and that new hires at his level were usually paid $88,500. Based on this information, Mr. Onuoha complained about his salary and requested a raise. His request was subsequently denied.

Court Finds No Need to Request Accommodation For Overall Access to Public Facilities Before Filing Suit under the New Jersey Law Against Discrimination

June 14, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed a decision of the Law Division finding that a plaintiff bringing a New Jersey Law Against Discrimination public accommodation disability discrimination claim asserting a generalized lack of access need not make a prior request for assistance or a reasonable accommodation. The court previously found that a request for assistance/accommodation from the public facility was necessary to sustain a public accommodation disability discrimination claim alleging overall lack of access. The Court disagreed and found that Plaintiff’s failure to make such a request does not negate the ongoing obligation placed on owners of places of public accommodation to ensure that all persons, including those with disabilities, can gain access.

In Lasky v. Highstown, the Plaintiff Mr. Gregory Lasky, was not able to access several public buildings and facilities during his frequent visits to Highstown, New Jersey because the facilities (including buildings, sidewalks, and parking facilities) were not built to accommodate him as a paraplegic. Mr. Lasky filed a claim of public accommodation disability discrimination under the LAD which was dismissed because the court found he failed to request assistance or an accommodation prior to filing his lawsuit.

In reviewing the lower court’s ruling, the Appellate Division looked to the legislative history of the New Jersey Law Against Discrimination. The Court specifically distinguished situations where the plaintiff brings a claim alleging lack of overall access from those where plaintiff alleges a lack of specific adaptations necessary to accommodate that person’s particular disability. Cases brought under the New Jersey Law Against Discrimination for lack of overall access to places of public accommodation do not require advance notice and/or a specific request for accommodation. Therefore, under the New Jersey Law Against Discrimination, Mr. Lasky would be able to sustain a public accommodation disability discrimination claim where Highstown failed to provide him access to sidewalks, the library, the municipal hall, the Army Navy Memorial and parking as a disabled paraplegic (N.J.S.A. 10:5-1 to -49). In contrast under Title II of the Americans with Disability Act, a plaintiff may be required to request an accommodation prior to filing a suit if there is a particularized failure to accommodate as opposed to a general one. However, even in particularized claims, plaintiff will not be required to make a prior request if the need for accommodation is obvious due to the nature of the person’s disability.

Employee Terminated for Testifying in Co-workers Discrimination Lawsuit May Proceed with Anti-Retaliation Lawsuit

May 8, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed in part and affirmed in part a grant of summary judgment dismissing Plaintiff’s failure-to-accommodate under the New Jersey Law Against Discrimination and retaliation claims. The Court agreed with the prior determination that after Plaintiff had exhausted her Family and Medical Leave Act benefits and she could not provide a definite date of when she could return to work she was not entitled to an “indefinite leave of absence.” However, the Court disagreed with the prior determination that Plaintiff failed to establish a prima facie case of retaliation because there was only indirect evidence that Defendants had knowledge of her involvement in a co-worker’s discrimination lawsuit.

In Lozo-Weber v. State of New Jersey, the Plaintiff, Ms. Lozo-Weber, was employed by the Department of Human Services and worked as an occupational therapist at the New Lisbon Development Center from November 2003 through April 2009. Ms. Lozo-Weber, a Caucasian female, witnessed what she thought to be discriminatory actions being taken against her co-workers by direct supervisor Brian Kelly and Beth Cooper, who acted as a liaison between Kelly and the other workers. From August 2004 to the time Mrs. Lozo-Weber went on maternity leave and disability for lupus, she observed the firing and relocation of various staff members who were African American or Asian. In addition to her own belief that supervisors’ actions were racially motivated, Mrs. Lozo-Weber was told that she “needed to align herself with the right side” when she addressed her concerns about the relocation of certain minority employees.

After Mrs. Lozo-Weber returned from maternity leave, she acted as a witness in a co-worker’s lawsuit against the Department of Human Services, New Lisbon Development Center and supervisors Kelly and Cooper. She then began to receive negative comments about her performance when prior to her involvement as a witness; she had received consistently stellar performance evaluations. Despite the negative comments, Mrs. Lozo-Weber continued to receive positive performance evaluations until January 9, 2008. On that date, New Lisbon Development Center issued a preliminary notice of disciplinary action against Mrs. Lozo-Weber that charged her with neglect of duty, falsification and actual or attempted theft of State property. After a hearing, all the charges were dismissed and Mrs. Lozo-Weber was awarded back pay.

Non-Jewish Employee Subjected to Anti-Semitic Harassment May Proceed with Religious Discrimination Claim

April 23, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed a trial court’s granting of summary judgment dismissing an employee’s claim under the New Jersey Law Against Discrimination when Defendants wrongly perceived the employee to be Jewish and directed daily Anti-Semitic comments at him. The court disagreed with the trial court’s determination that the employers’ perception that the employee was Jewish, when he in fact was not, did not provide grounds for a recognizable claim under of religious discrimination under the New Jersey Law Against Discrimination.

In Cowher v. Carson & Roberts Inc., the claimant, Mr. Myron Cowher, was employed with Carson & Roberts Inc. as a truck driver from April 2006 through May 2008. From January 2007 through May 2008, Mr. Cowher was subjected to Anti-Semitic statements that were made directly to him by his two supervisors on a daily basis and often in the presence of other coworkers. Although the employer initially denied making such statements, video recordings revealed Mr. Cowher’s supervisors made various Anti-Semitic statements to Mr. Cowher. For example, Mr. Cowher’s supervisors called him a “Jew bag” over 20 times, called him a “Jew bastard” and told him “Only a Jew would argue over his hours.”

Mr. Cowher’s supervisors stated that the comments were made not because they perceived Mr. Cowher to be Jewish but instead because he and his wife took a cut of a Superbowl pool they ran and thus “fit the stereotype of Jews being avaricious.” The employer claimed that these comments were nothing but “light hearted banter between co-workers.” Mr. Cowher did not agree that these comments were “light hearted banter” and complained to the supervisors and to the Facility Manager. The Facility Manager told Mr. Cowher to laugh it off and then after making another complaint, Mr. Cowher was told to ignore it and it would go away.