religious discrimination

New Jersey Expands Hate Crime Law

September 14, 2020 | Smith Eibeler LLC

New Jersey Governor Phil Murphy signed legislation this month that makes it a crime to use 911 as a tool to intimidate another person based on his or her race. The bill, which has already taken effect, was introduced to the State Senate on June 29, 2020. It amends and expands the state’s existing false public alarm statute to include false incrimination and filing a false police report as forms of bias intimidation when they are done in an attempt to intimidate or harass an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

Bias intimidation has long been a crime in New Jersey, and it occurs when a person is the target of a crime specifically because of his or her race or other protected status. When this additional layer of intent is present in the commission of a crime, it is commonly referred to as a “hate crime”. The penalties for committing a hate crime or bias intimidation are usually harsher and in addition to the penalties for committing the underlying offense. The reason for the harsher penalties is that the charge of bias intimidation is generally considered a crime of one degree higher than the most serious underlying offense. For instance, let’s assume that a Caucasian man ran his car into an African American man as he crossed the street, causing serious bodily harm, and the Caucasian man did so because of his race. Because assault by auto resulting in serious bodily injury is a crime of the fourth degree, the Caucasian driver is subject to 18 months in prison and a $10,000 fine for assault by auto. When the additional charge of bias intimidation is considered, he is now facing an additional 3-5 years in prison and $15,000 fine.

The state’s new law addressing racially-motivated 911 calls and false police reports appears to work slightly differently, however, by merging bias intimidation with the underlying crime. The statute (found at N.J.S. 2C:33-3), has been amended to add:

New Jersey Moves Forward with Hair Discrimination Law

December 18, 2019 | Smith Eibeler LLC

Earlier this week, New Jersey’s Assembly and Senate passed a ban on discrimination associated with hair. Discrimination based on hair has been popping up in courtrooms and legislatures across the country. Once Governor Murphy signs off, it will be unlawful to discriminate based upon hair.

In several states, bills have been proposed to increase protections from hair based discrimination. The New Jersey State Assembly Labor Committee approved a bill this past summer to ban discrimination based upon hairstyles and textures that are traditionally associated with race and is considered a form of race discrimination. The bill was prompted by a December 2018 incident involving a New Jersey high school wrestler forced by a referee to cut his hair, styled in locs, or forfeit the match. The bill was proposed by Assemblywoman Angela McKnight, Hudson County’s representative, following the outrage surrounding the wrestler’s forced hair cut—performed publicly by the referee, in front of spectators. The bill, originally introduced this summer that was recently passed, amends the New Jersey Law Against Discrimination to reflect that “race” is inclusive of traits “historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” “Protective hair styles includes, but is not limited to, such hairstyles as braids, locks, and twists.”

The New Jersey Law Against Discrimination prohibits employers and places of public accommodation from discriminating against employees and other persons. While race has long been recognized as a protected class of persons protected by the state discrimination law, the New Jersey law will specifically prohibit discrimination based upon hair, if the governor signs it into law.

US Supreme Court: Title VII Filing Requirement is Not Jurisdictional

July 11, 2019 | Smith Eibeler LLC

On June 3, 2019, the United States Supreme Court released an important decision in the case Fort Bend County, Texas v. Davis (slip opinion available at: https://www.supremecourt.gov/opinions/18pdf/18-525_m6hn.pdf) regarding claims of employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). This decision promises to have widespread impact for many cases of employment discrimination filed in federal court, as it reevaluates and clarifies the role and impact of filing a charge with the Equal Employment Opportunity Commission (“EEOC”).

When an individual believes that they suffered employment discrimination in the workplace, federal law may provide a remedy. In such a case, when an individual seeks to vindicate their rights under federal employment discrimination law, Title VII requires that complainants first file what is known as a “charge” with the EEOC prior to pursuing a civil action in federal court. This procedure has been treated by many courts as a prerequisite to the federal court’s jurisdiction over the individual’s discrimination claim.

After the EEOC receives a charge of discrimination they notify the employer(s) named by the charging party and investigate the allegations. The EEOC’s goal is to evaluate the truth of the allegations, as well as to determine if the dispute can be resolved through informal means or, if that is not possible, whether the EEOC will bring a civil action on behalf of the charging party against the employer(s) in court. The EEOC has 180 days from the date the charge is filed to complete this process, after which (if neither of those courses is taken) they must provide a “right-to-sue” notice to the complainant. Once a complainant receives a right to sue notice, they may then pursue a civil action against their employer on their own behalf.

Appellate Division: Employee Terminated for Refusing Flu Vaccination is Entitled to New Jersey Unemployment Benefits

April 14, 2016 | Smith Eibeler LLC

The New Jersey Appellate Division has ruled that an employee is not disqualified from receiving unemployment benefits for refusing to submit to a flu vaccination policy for purely secular reasons.

In the case of June G. Valent v. Board of Review, Department of Labor, the employee, Ms. Valent, was employed as a Registered Nurse with Hackettstown Community Hospital (“the Hospital”) from May 11, 2009 through her termination on January 2, 2011. On September 21, 2010, the Hospital’s corporate entity, Adventist Health Care, Inc., implemented a “Health Care Worker Flu Prevention Plan” that required their employees to have a flu vaccine unless there was a documented medical or religious exemption.

Ms. Valant refused to be vaccinated with the flu shot and did not provide her employer with any medical or religious reason. Although Ms. Valant offered to wear a mask during flu season as a concession for not having to be vaccinated, the Hospital declined her offer and terminated her employment on the basis that she violated her employer’s flu vaccination policy. If terminating Ms. Valant was not enough, the Hospital then challenged Ms. Valant’s claim for unemployment benefits by claiming that she committed misconduct (“improper, intentional, connected with one’s work, malicious, and within the individual’s control, and is either a deliberate violation of the employer’s rule or a disregard of standards of behavior which the employer has the right to expect of an employee.”) in her refusal to permit her employer to inject her with the flu vaccination. The Appeal Tribunal rejected this argument and found that Ms. Valant’s refusal to follow an employer’s policy that “was not unreasonable” and approved her claim for unemployment benefits. The Board of Review, however, reversed the Appellate Division and disqualified Ms. Valant on the basis of simple misconduct. In the decision, the Board of Review found that the hospital’s policy requiring flu vaccinations was not unreasonable, and therefore Ms. Valant should be disqualified from receiving unemployment benefits.

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.