Law Against Discrimination

Congress Tackles Pregnancy Discrimination: The Pregnant Workers Fairness Act

July 31, 2019 | Smith Eibeler LLC

An important bipartisan bill addressing pregnancy discrimination in the workplace was introduced to the United States House of Representatives on May 14, 2019, signaling a potential shift in Congressional attitudes on this issue. While this was not the first-time legislation of this type was introduced in the House of Representatives, there is reason for optimism that changing views on workplace discrimination could lead to a different result this time. Notably, the bill has attracted bipartisan support. The bill lays the groundwork for a new law that would provide further workplace protections to women who become pregnant, give birth, or suffer from related medical conditions.

The Pregnant Workers Fairness Act (PWFA),H.R. 2694, was first introduced in the United States House of Representatives in 2012 and has been re-introduced in Congress in each subsequent session. A parallel bill (S. 1101) was also introduced in the Senate, by Senator Bob Casey, in 2017. The Pregnancy Workers Fairness Act aims to eradicate discriminatory behavior toward pregnant women by ensuring that workplace accommodations are provided to employees whose ability to perform job functions is limited by pregnancy, childbirth, or a related medical condition. The Pregnancy Workers Fairness Act is sponsored by Representative Jerry Nadler who, after introducing the Bill this year, stated, “No woman should have to choose between a healthy pregnancy and a paycheck, especially when often a simple fix – a bottle of water during a shift, an extra bathroom break, a chair – will allow women to stay on the job and support their families throughout their pregnancy.”

If the Pregnancy Workers Fairness Act is enacted, it would conform Federal anti-discrimination law in this area to the anti-discrimination laws and policies maintained by 25 states, including New Jersey. The PWFA would:

New Jersey Passes Law Prohibiting Employers From Requiring Salary Disclosures of Job Applicants

July 26, 2019 | Smith Eibeler LLC

A new bill was signed into New Jersey law on July 25, 2019, that furthers a statewide effort to reduce inequality in pay for New Jersey employees. Because Governor Murphy is out of the state on vacation, Lieutenant Governor Sheila Y. Oliver signed Assembly Bill 1094 into law yesterday after it was passed in the New Jersey Assembly on March 25, 2019 and the Senate on June 20, 2019. The new law will prohibit employers from asking or requiring job applicants to disclose their salary history during the application process. The new law is intended to address continued pay inequality and gender discrimination that has long existed in the employment environment.

The newly enacted law prohibits employers from screening applicants based on their salary history, including prior benefits. Employers may not utilize any minimum or maximum criteria in relation to salary history to disqualify potential candidates, requiring that the application process be predicated entirely on experience and capabilities as opposed to prior salary and other irrelevant factors. Employers may only request the salary history of their applicants after they have provided them with an offer of employment that includes a compensation package. While employers may utilize an applicant’s prior salary in their compensation determinations if that information is volunteered by the applicant without coercion, an applicant’s denial to provide such information cannot be considered as a factor in any employment decisions.

The bill amends the New Jersey Law Against Discrimination, which prohibits discrimination, harassment and retaliation based on protected characteristics in employment. Specifically, it amends the New Jersey Law Against Discrimination by adding the following language:

After Calabotta: Certain Out-of-State Employees Protected by the New Jersey Law Against Discrimination

July 2, 2019 | Smith Eibeler LLC

In the recent case David F. Calabotta v. Phibro Animal Health Corp., et al., Smith Eibeler employment attorney Kathryn McClure, Esq., along with co-counsel, Mary Ann Sedey secured a substantial victory for employees, both inside and outside of New Jersey. Through its opinion, the Appellate Division reaffirmed New Jersey’s commitment to the eradication of workplace discrimination and the expansive reach of the New Jersey Law Against Discrimination.

The case provides clarification to federal and state courts that it is inappropriate to impose a “bright-line rule” that the Law Against Discrimination only applies where an individual was employed within the State of New Jersey. Rather, a case-by-case analysis must be performed, with attention paid to the particular facts and circumstances at issue in each given case. Further, the Appellate Division again approved of a claim for associational discrimination under the Law Against Discrimination, despite the absence of explicit legislative approval of such a claim.

David Calabotta, the plaintiff in the Calabotta case, was not a member of a protected class himself, but rather brought a claim for associational discrimination under the Law Against Discrimination. David’s claim was premised on his relationship with his wife, who was diagnosed with breast cancer and thus was disabled within the meaning of the Law Against Discrimination. David brought his claim after his employer refused to consider him for a promotion and then subsequently terminated his employment after his wife became disabled. David alleged that his employer took those actions against him because of his association with his disabled wife.

New Jersey Passes “Panic Button Bill” to Protect Hotel Workers from Sexual Harassment

June 27, 2019 | Smith Eibeler LLC

In a demonstration of support for and solidarity with New Jersey employees that have experienced sexual harassment and sexual assault in the workplace, Governor Murphy signed Senate Bill 2986, nicknamed the “Panic Button Bill,” on June 11th, 2019. This bill was introduced to the New Jersey Senate in September of 2018 and, with Governor Murphy’s signature, will take effect in January of 2020. Governor Murphy claims that, with its passage, New Jersey becomes the first state nationwide to enact legislation of its kind. The passing of the legislation is another victory for employees, and particularly victims of sexual harassment in the #MeToo movement.

In an effort to recognize the prevalence of sexual misconduct in specific areas of employment, the New Jersey Senate has targeted the hospitality industry with regulations intended to protect hotel employees from facing such unlawful behavior. The bill states, “[d]ue to the unique nature of hotel work, hotel employees are particularly vulnerable when working alone in hotel guest rooms…this solitary work places them at risk of assault, including sexual assault, and sexual harassment.” This statement was proven true by a horrific case of sexual assault that occurred in 2018, when a 51-year-old house keeper at Billy’s Casino in Atlantic City was forced into a hotel room and sexually assaulted by a guest. This criminal act sparked a widespread demand for safer working conditions for hotel employees.

New Jersey employees are protected from sexual harassment and sexual misconduct in the workplace by the New Jersey Law Against Discrimination (LAD). The New Jersey Law Against Discrimination prohibits discrimination on the basis of sex, which includes behavior such as inappropriate touching, unwelcome sexual advances, and retaliation for opposing sexual harassment conduct or participating in an investigation into such conduct. These are just some of the many different forms sexual harassment and assault can take. The New Jersey Law Against Discrimination requires that employers take the utmost caution in assuring that their employees are not vulnerable to experiencing this type of unlawful behavior. This is the basis for the Panic Button Bill that Governor Murphy signed into law.

Evening the Playing Field: US Women’s Soccer Fights For Equal Pay

June 20, 2019 | Smith Eibeler LLC

The FIFA Women’s World Cup has captivated the attention of nations around the world, and the United States is no exception. With the group stage coming to a close this week, the U.S. Women’s National Team (“WNT”) has already demonstrated dominance in their first two games, beating Thailand and Chile by a combined score of 16-0. As the WNT’s World Cup successes have increasingly dominated headlines, the team’s recent lawsuit filed against their employer, the U.S. Soccer Federation, Inc. (“USSF”), has attracted increased attention as well. While the team battles to defend their FIFA World Cup title on the pitch, they battle in court to defend their rights, and the rights of women nationwide, to receive equal pay for equal work.

The law has long been that all people in the United States are entitled to equal pay for equal work (regardless of gender, race, or any other protected characteristic), as well as fair employment standards and work conditions. These protections were established with the passage of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 and can be traced back to 1868 and the adoption of the Fourteenth Amendment to the United States Constitution. According to their Complaint, for decades the WNT has endured grossly unequal pay and inferior working conditions in comparison to the Men’s National Team (“MNT”). This has continued despite the fact that the WNT is demonstrably more successful and produces comparable revenue to the MNT for the USSF, which employs both the WNT and the MNT.

The Complaint filed by the WNT details the pay gap that exists between the two teams. It explains that if a male and female national team player each played 20 exhibition games in one year, the male player would earn an average of $263,320 while the female player would earn a maximum of $99,000. Male players who try out for and earn a place on a World Cup team earn $55,000, while female players only earn $15,000 for the same accomplishment. In 2014, the USSF provided the MNT with performance bonuses totaling $5,375,000 for losing in the Round of 16. By contrast, the WNT only earned $1,725,000 for winning the entire tournament. Despite advancing three rounds further that the MNT, and ultimately winning the entire tournament, WNT players earned less than a third of what the MNT players earned.

Court Agrees: “Borgata Babes” Stated Valid Claim for Unlawful Discrimination

June 6, 2019 | Smith Eibeler LLC

A group of female cocktail waitresses – referred to as the “Borgata Babes” – have finally received a win in their suit against the Borgata Hotel and Casino which has now been in the courts for more than a decade. The Atlantic County Superior Court, Appellate Division issued a ruling on May 20, 2019 finding that the Plaintiffs’ claims of gender-based discrimination, based on Borgata’s enforcement of personal appearance standards, should be allowed to proceed to trial. In so ruling, the Appellate Division overturned the trial court and found that, while the standards themselves (including weight, appearance, and sexual appeal) do not violate anti-discrimination laws, Borgata’s enforcement of those standards could constitute gender based harassment under the New Jersey Law Against Discrimination.

Accordingly, the Appellate Division remanded the case back to the trial court to conduct further proceedings consistent with their decision. Unfortunately, this will only potentially benefit the five remaining Plaintiffs, out of the original twenty-one “Borgata Babes” who began the suit in 2008. At that time, the Plaintiffs’ alleged that they were humiliated and harassed by Borgata’s management in efforts to have Plaintiffs comply with and meet Borgata’s personal appearance standards.

The standards imposed on the “Borgata Babes” do not automatically violate anti-discrimination employment laws because of the niche role that these employees fill for the hotel-casino. The physical appearance standards are permissible because “Borgata Babes” are not merely servers or waitresses, they are also expected to work as models and hosts to entertain Borgata’s guests and give those guests a Las Vegas experience in their Atlantic City location. Thus, “Borgata Babes” are displayed as physically fit and are attired in costumes meant to emphasize their physical attractiveness. Maintaining this image is mandatory for a “Borgata Bab” to keep their job.

Sexual Aggressors to Forfeit State Pensions Under Proposed Bill

May 31, 2019 | Smith Eibeler LLC

An act that strips New Jersey public officials of their pensions and retirement benefits after being found guilty or pleading guilty to crimes of corruption will be expanded under a new amendment to now incorporate those convicted of harassment, sexual assault, sexual contact, or lewdness. The proposed legislation, that was passed by the New Jersey Senate in a 37-0 vote, will now head to Governor Murphy for his signature.

If the legislation is enacted into law, a person who holds or has held any public office, position, or employment, elective, or appointive, under the government of the State of New Jersey, or political subdivision thereof, who is convicted of a crime or offense or touches such office, would forfeit all of the pension or retirement benefits earned during his or her employment or appointment. The proposed law defines a crime or offense that “involves or touches such office, position or employment” as meaning that “the crime or offense related directly to the person’s performance in, or circumstances flowing from, the specific public office or employment held by the person.

The proposed law would expand the criminal conduct subject to the law to twenty four (24) enumerated criminal offenses, that include the following: criminal coercion, theft by deception that exceeds $10,000, theft by extortion, theft by failure to make required disposition of property received if it exceeds of $10,000, criminal bribery, money laundering, false contract payment claims, bribery in official matters, threats and other improper influence in official and political matters, unlawful official business transaction where interest is involved, acceptance or receipt of unlawful benefit by public servant for official behavior, offer of unlawful benefit to public servant for official behavior, perjury, tampering with witnesses, tampering with public records or information, compounding, official misconduct, speculating or wagering on official action or information, pattern of official misconduct, corruption of public resources in excess of $500,000, harassment, sexual assault, sexual contact or lewdness.

New Jersey Law Protects Employee Who Failed Drug Test For Medical Marijuana

May 23, 2019 | Smith Eibeler LLC

The New Jersey Appellate Division ruled that the New Jersey Law Against Discrimination protects New Jersey employees from being fired for failing a drug test in connection with medical marijuana use. For employees who use medical marijuana, this provides some extra protections with respect to their employment. With approximately 45,000 registered patients in the medical marijuana program, and an additional 2,000 members joining every month, this decision has far-reaching implications as it will protect those with disabilities requiring use of medical marijuana.

The Appellate Division suggested that, to the extent the use of medical marijuana is limited to non-working hours, it does not translate that an employee is unable to perform their job duties and responsibilities. The Appellate Division’s decision was based upon a lawsuit filed by 41-year old Justin Wild, a cancer patient, who was fired from his employment at a funeral home as a result of his medical marijuana use during non-working hours.

The New Jersey Law Against Discrimination prohibits employers from discriminating against disabled employees. The New Jersey state discrimination law requires that employees provide reasonable accommodations to disabled employees who need assistance in performing the essential functions of his or her job. When an employee provides sufficient notice to his or her employer that they need assistance as a result of a disability, the employer is obligated to work with the employee in an interactive process to determine whether the requested or other accommodation can provided to the employee. The employer must provide a reasonable accommodation, unless they can show that the accommodation would constitute an undue hardship on their business operations.

New Jersey’s Strict Confidentiality Directive Continues to Silence Victims of Sexual Harassment

April 22, 2019 | Smith Eibeler LLC

New Jersey’s State Policy Prohibiting Discrimination in the Workplace is considered amongst many New Jersey employment lawyers as being one of the least protective of employee rights in the entire country. Unfortunately, the newest revisions proposed by the Civil Service Commission do not provide any meaningful improvement for State employees governed under the State’s anti-harassment policy, and particularly with respect to how it conducts investigations of claims of sexual harassment. In fact, when it comes to New Jersey’s controversial “strict confidentiality directive” policy, the proposed changes make the New Jersey’s anti-harassment policy even worse for victims of sexual harassment and discrimination.

Much has been written over the past week regarding the Civil Service Commission’s attempts to strengthen the strict confidentiality directive. While the Civil Service Commission’s proposed revisions could worsen the penalties for breach, the current version of the strict confidentiality directive in effect continues to require incidents of sexual harassment from the public. What many of the news reports seem to have missed is the devastating impact of the current strict confidentiality policy has and continues to have on silencing victims of sexual harassment.

The current strict confidentiality directive in place expressly threatens state employees with discipline up to and including termination if the state employee exercises his or her constitutionally protected right to speak out about allegations of harassment within the state workplace. A state employee who makes a complaint of harassment or discrimination, or is requested to participate in a discrimination or harassment investigation, is required under current state regulations and practice to keep all aspects of the investigation confidential. This means, for example, that if a state employee is the victim of sexual assault or harassment at her state job and she complains about it to the State’s EEO/AA office, she is forbidden under current regulations and practice to tell a lawyer, a co-worker or even her spouse anything about what happened. The strict confidential directive remains in place and every state employee must abide by it or be subject to discipline. N.J.A.C. 4A:7-3.1(j), states:

New York City Bans Hair Discrimination

April 12, 2019 | Smith Eibeler LLC

Last month New York City took action to combat an often-overlooked form of race discrimination involving employee’s hair. In February 2019, the New York City Commission on Human Rights (the “Commission”) published new guidance that explains that employers (as well as housing providers and providers of public accommodations) can no longer institute policies or practices that discriminate against people on the basis of their natural hair texture or their choice to wear a hairstyle commonly associated with African Americans, such as an afro or dreadlocks. According to this new guidance, the Commission views such policies and practices as violative of the New York City Human Rights Law (the “NYCHRL”), announcing that in the Commission’s view, “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.

Discrimination based on hairstyles is an issue that courts across the country have grappled with over the years, with generally employer-friendly results. Courts have been fairly consistent in finding that where a person’s hairstyle is tied to their faith, employers cannot restrict their right to express their faith through their chosen hairstyle. On the other hand, where the person’s hairstyle is tied to their cultural identity and heritage, courts have not been so kind. For the most part, if an employer implemented a race-neutral policy banning hairstyles associated with Black people, courts have not found discrimination. Similarly, race-neutral policies restricting “unkempt” or “messy” hairstyles have generally gained approval from the courts.

For the most part, in order to prevail, a plaintiff had to show that they were specifically targeted in some way, or that the employer’s policy was not applied neutrally. In other words, employees had to demonstrate that the employer’s defense – that the employee failed to comply with a race-neutral employee grooming policy – was pretextual and that the employer’s true motive was discriminatory. Proving pretext can be extremely difficult, which explains why most employers have succeeded when their grooming policies have been challenged as racially discriminatory.