How to Prove Workplace Discrimination in New Jersey

How to Prove Workplace Discrimination in New Jersey

The New Jersey Law Against Discrimination strictly prohibits discrimination in the workplace. Indeed, individuals have the right to work in a professional atmosphere that promotes equal employment opportunities and prohibits practices such as employee terminations, demotions, and the denial of promotions motivated by discriminatory biases.  

What Qualifies as Workplace Discrimination? 

In New Jersey, workplace discrimination occurs when an employer takes an adverse action against an employee or job applicant based on a protected characteristic. The protected characteristics under New Jersey law include:

  • Race
  • National Origin
  • Ancestry
  • Age
  • Sex
  • Sexual Orientation
  • Gender Identity or Expression
  • Disability
  • Genetic Information
  • Pregnancy or Breastfeeding
  • Marital Status
  • Civil Union Status
  • Domestic Partnership Status
  • Military Status.  

What is Required to Prove Workplace Discrimination? 

In general, wrongful termination claims brought under the New Jersey Law Against Discrimination are analyzed under the three-step burden-shifting test articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  To establish a prima facie case of discrimination, an individual must prove by a preponderance of the evidence that they were a member of a protected class; that they were performing their job at a level that met their employer’s legitimate expectations; and that they suffered an adverse employment under circumstances that give rise to an inference of unlawful discrimination.  

If the individual can establish a prima facie case, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse employment action.  Once the employer articulates a legitimate, nondiscriminatory reason for the decision, the individual must produce sufficient competent evidence to support an inference that the employer’s articulated reasons are merely a pretext for discrimination. 

Consult With an Experienced New Jersey Employment Lawyer 

Unlawful discrimination often negatively impacts an individual’s physical and emotional well-being.  As such, it is important to retain an attorney that you trust.  The Employment Lawyers at CMS understand this and empathize with the clients, utilizing their vast experience to strongly advocate for their clients and provide strategic legal advice to help them navigate through their complex legal issues. If you are in need of legal representation to assist you with an employment discrimination matter and/or are in need of the services of an experienced and well-versed New Jersey employment lawyer, please contact Curcio Mirzaian Sirot LLC.

Coming Soon: The New Jersey WARN Act Amendments Take Effect On April 10, 2023

On January 10, 2023, Governor Phil Murphy signed Assembly Bill No. 4768, which amends the Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN Act”).  The amendments will take on April 10, 2023, which is 90 days from Governor Murphy’s signing of the bill.

The significant amendments to the NJ WARN Act include the following:

  • New Jersey employers with 100 employees will be covered by the law.  This includes both full-time and part-time employees.
  • 90 days-notice will be required for mass layoffs, termination of operations, or transfer of operations as defined under the NJ WARN Act.
  • Regardless of whether the requisite notice is provided, employers will be required to pay affected employees one-week of severance for each year worked. 
  • “Mass layoff” under the NJ WARN Act will mean a layoff that affects at least 50 employees at an establishment or reporting to an establishment in the State of New Jersey. 
  • In the event the requisite notice is not provided, employers will be required to pay four (4) weeks of severance.

The Amendments to the NJ WARN Act are extensive.  And, the penalties to employers are significant.  Accordingly, it is imperative that employers consult with legal counsel prior to implementing any action under these amendments.  If you have any questions about the new amendments to the NJ WARN Act, please contact Curcio Mirzaian Sirot LLC.

*    Frank A. Custode, Esq. is the Managing Partner and Chair of the Employment Practice at Curcio Mirzaian Sirot LLC. 

What Is A “Good Faith” Reduction In Force Under the New Jersey Law Against Discrimination?  

To establish a prima facie case under the New Jersey Law Against Discrimination, a plaintiff must demonstrate that (1) they are a member of a protected group; (2) they were performing the job at a level that met the employer’s legitimate expectations; (3) an adverse employment action was taken against the employee; and (4) the challenged decision took place under circumstances that give rise to unlawful discrimination.  See Williams v. Pemberton Twp. Pub. Schools, 323 N.J. Super. 490, 502 (App. Div. 1999).  If the employee establishes a prima facie case, the burden of production shifts to the employer to establish a legitimate non-discriminatory reason for the adverse employment action.  See Bergen Commercial Bank v. Sissler, 157 N.J. 188, 210 (1999).  If a non-discriminatory basis is shown, the plaintiff must establish, by a preponderance of the evidence, that the alleged justification is a pretext for discrimination.  See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005).  However, it is important to understand how New Jersey courts analyze the employer’s “legitimate non-discriminatory” explanation for the termination in the context of a reduction in force.

Indeed, among the factors that courts analyze when reviewing whether an employee’s termination is the result of a “good faith” reduction in force are as follows: (1) whether the business reasons for the reduction in force and the anticipated economic savings thereform were adequately documented; (2) the number of employees or percentage of the company’s work force affected by the reduction in force; (3) the existence of adequately documented selection criteria and procedures for implementation of the reduction in force; (4) whether reduction in force decisions were made on the basis of objective job related criteria and procedures or by reference to the individuals occupying the affected positions; (5) whether reduction in force decisions were based on fair and objective performance evaluations of the affected employees; and (6) whether there was any consideration of alternatives to laying off employees to achieve the economic savings anticipated from the reduction in force, such as shortened work weeks or work days, temporary shutdowns, voluntary reverse seniority layoffs with partial-pay, work-sharing, reductions in authorized overtime, salary freezes or reductions, hiring freezes and/or early retirement incentive programs.   See Leahey v. Singer Sewing, Co., 302 N.J Super. 68, 79-80 (Law Div. 1996).  

            Based on the foregoing, employers should consult with legal counsel prior to conducting a reduction in force.  Likewise, affected employees should consult with legal counsel if they are subject to a reduction in force.  If you have any questions about reductions in force and/or claims under the New Jersey Law Against Discrimination, please contact Curcio Mirzaian Sirot LLC. 

* Frank A. Custode, Esq. is the Managing Partner and Chair of the Employment Practice at Curcio Mirzaian Sirot LLC.

New York City Salary Transparency Law Now In Effect

Effective November 1, 2022, New York City employers must include a good faith salary range for every advertised job, promotion, and transfer opportunity.

Who Is Covered?  The law covers all employers with four or more employees or one or more domestic workers.  Employment agencies are also covered by the law.  Note, however, that the law does not apply to temporary help firms, which are defined by the New York City Commission on Human Rights (“NYCCHR”) as “businesses that recruit, hire, and assign their own employees to perform work or services for other organizations.” See New York City Commission on Human Rights May 12, 2022 Salary Transparency In Job Advertisements Fact Sheet. 

What is covered?  Any advertisement – which is defined by the NYCCHR as “a written description of an available job, promotion or transfer opportunity that is publicized to a pool of potential applicants”- for a job, promotion or transfer opportunity that would be performed in New York City is covered by the new law.  See id.  Note that the law applies to positions that would be “performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.”  See id.

What needs to be included in the job advertisements?  Employers are required to include the minimum and maximum salary “they in good faith believe at the time of the posting” in the job advertisements.  See id.  “Good faith” means “the salary range the employer honestly believes at the time they are listing the job advertisement that they are willing to pay the successful applicant(s).” See id.

How is the law enforced?  The New York City Commission on Human Rights is the agency enforcing this law.  “Employers and employment agencies who are found to have violated the NYCHRL [New York City Human Rights Law] may have to pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief.”   

If you have any questions about the New York City Salary Transparency Law, please contact Curcio Mirzaian Sirot LLC.

* Frank A. Custode, Esq. is a Partner of Curcio Mirzaian Sirot and the Chair of the firm’s Employment Practice.

The New Jersey Supreme Court Finds That the Use of Two Offensive Slurs May Support a Hostile Work Environment Claim

In Rios, Jr. v. Meda Pharmaceutical, Inc., et al. (A-23-20) (08476) (June 16, 2021), the Supreme Court of New Jersey held that a supervisor’s use of two offensive slurs were sufficiently severe or pervasive enough to create a hostile work environment in violation of the New Jersey Law Against Discrimination (“LAD”).

In May 2015, Plaintiff Armondo Rios, Jr., a Hispanic male, commenced employment with Meda Pharmaceutical Inc. (“Meda”).  Mr. Rios’s direct supervisor was Tina Cheng-Avery.  Approximately one month after he commenced employment, Mr. Rios alleges that when he discussed his plan to buy a new house with Ms. Cheng-Avery, she responded with a derogatory comment about Hispanics, stating “it must be hard for a Sp** to have to get FHA loans.”  Then, in July 2015, Mr. Rios alleges that Ms. Cheng-Avery made another offensive remark about Hispanics in his presence, commenting that an actress auditioning for a Meda product commercial “would work if she didn’t look too Sp**ky.”  Mr. Rios further alleges that he reported each incident to Meda’s Director of Human Resources. In February 2016, Ms. Cheng-Avery placed Mr. Rios on probation for poor performance.  The next month, he was placed on a performance improvement plan and was terminated in June 2016.

Thereafter, Mr. Rios filed a lawsuit alleging, among other things, hostile work environment in violation of the LAD.  The trial court subsequently granted the Defendants’ motion for summary judgment, finding that no rational factfinder could conclude that Ms. Cheng-Avery’s comments were sufficiently severe or pervasive enough to create a hostile work environment.  The Appellate Division affirmed the trial court’s decision.  Mr. Rios subsequently filed a petition for certification with the New Jersey Supreme Court.  The key issue on appeal was whether the alleged slurs directed at Mr. Rios were sufficiently severe or pervasive enough for the claim to withstand summary judgment and proceed to trial.  The Supreme Court reversed and remanded, holding that the comments were severe enough to sustain a hostile work environment claim.

Specifically, the Supreme Court held that “Under all of the circumstances, a rational factfinder could have reasonably found from Rios’s evidence that the alleged slurs directed at him were sufficiently severe to create a hostile work environment.  He should therefore be allowed to present his claim to a jury.”  In so holding, the Court found that “the two comments Cheng-Avery allegedly made were highly offensive and demeaning slurs from the perspective of an objectively reasonable Hispanic person.”  The Court further found that “Cheng-Avery’s position as a supervisor compounded the severity of the alleged remarks” and relied on Mr. Rios’s contention that he reported the alleged slurs in accord with company policy.  Accordingly, the Court found that “the conduct he alleges presents sufficient evidence of severity to create a genuine issue of material fact and call for a trial on the merits.”

This is an important victory for employees in the State of New Jersey because it reiterates that even a few highly offensive and demeaning slurs may constitute a hostile work environment in violation of the LAD.   If you have any questions about hostile work environment claims, please do not hesitate to contact Curcio Mirzaian Sirot LLC.

Biden administration’s new executive order combats discrimination based on gender identity and sexual orientation

On January 20, 2021, President Biden issued Executive Order 13988 (“EO 13988”) which expands the prohibition of discrimination based on gender identity and/or sexual orientation.  In so doing, EO13988 relies on the 2020 United States Supreme Court decision of Bostock v. Clayton County, which holds that discrimination “because of . . . sex” under Title VII of the Civil Rights Act of 1964 “covers discrimination on the basis of gender identity and sexual orientation.”   Thus, based on the reasoning set forth in Bostock, laws that prohibit sex discrimination also prohibit “discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”

EEO 13988 further states that it is the policy of the Biden Administration “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation” and “to address overlapping forms of discrimination.”  As such, most significantly, EO 13988 requires the heads of all federal agencies to “as soon as practicable and as appropriate and consistent with applicable law . . . consider whether to revise, suspend or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination” and for the heads of all federal agencies to “as soon as practicable, also consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy” set forth in EO 13988.  Furthermore, EEO 13988 requires each agency head to consult with the Attorney General within 100 days of the date of the Order regarding “a plan to carry out actions that the agency has identified . . . as appropriate and consistent with applicable law.”

This is an important victory and an expansion of rights for those suffering from workplace discrimination due to gender identity and/or sexual orientation.  If you have any questions about EO 13988 and/or have any questions about workplace discrimination and/or harassment, please do not hesitate to contact Curcio Mirzaian Sirot LLC.

* Frank A. Custode, Esq. is a Partner and Chair of the Employment Practice at Curcio Mirzaian Sirot LLC.

EEOC Issues Guidelines Regarding COVID-19 Vaccination of Employees

On December 16, 2020, the United States Equal Employment Opportunity Commission (“EEOC”) published revised guidelines regarding COVID-19 vaccination for employees.  While the guidelines permit vaccination of employees, there are significant legal issues about which employers should be aware and many potential pitfalls.  Here are some key takeaways:

  • Employers need to be mindful of pre-screening vaccination questions. EEOC guidance indicates that administration of the COVID-19 vaccine itself is not a “medical examination” which violates the Americans with Disabilities Act (“ADA”). However, employers need to be mindful of pre-screening vaccination questions that may elicit information about any employee disability-related issues.  Indeed, employers are limited to pre-screening questions that are “job-related and consistent with business necessity” meaning that “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive the vaccination, will pose a direct threat to the health or safety of her or himself or others.”  Exceptions to this requirement are when (1) the employee voluntarily chooses to get the vaccine; or (2) the employee gets the vaccine “from a third party that does not have a contract with the employer, such as a pharmacy or other healthcare provider.” 
  • Confidentiality and Health Insurance Portability and Accountability Act (“HIPPA”) Compliance. Employers need to maintain confidentiality about any medical information learned about their employees and should be mindful of compliance with HIPPA.
  • Employers may require proof of vaccination. Employers may require proof that their employees received the COVID-19 vaccine without violating civil rights laws or the ADA.
  • Disability-Related Concerns of Employees. If an employee declines vaccination due to disability-related concerns, an employer may prohibit an unvaccinated employee from the workplace if the employer can demonstrate the employee “would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”  This analysis is conducted on an individualized case-by-case basis utilizing the following factors: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”
  • Religious-Related Concerns by Employees.  If an employer requires COVID-19 vaccination, the employer must provide reasonable accommodations to employees who are unable to receive the vaccine due to a “sincerely held religious belief, practice or observance,” unless providing such accommodations would pose an undue hardship under Title VII of the Civil Rights Act.

We expect that legal guidance regarding COVID-19 vaccination will continue to be fluid as the vaccination becomes more readily available and anticipate that the EEOC will provide additional guidance in the upcoming months pertaining to COVID-19-related employment law issues.  If you are experiencing issues in the workplace due to COVID-19 and/or need guidance on how to navigate COVID-19-related employment law issues, please do not hesitate to contact Curcio Mirzaian Sirot LLC.

* Frank A. Custode, Esq. is a Partner and Chair of the Employment Practice Group at Curcio Mirzaian Sirot LLC.

 

State of New Jersey Executive Order No. 192 Requires COVID-19 Workplace Safety Protocols

Effective November 5, 2020, Executive Order No. 192 is in effect, requiring New Jersey employers to implement certain workplace safety protocols.  This is the State’s latest effort to increase workplace safety for employees. Specifically, Executive Order No. 192 requires the following protocols:

  • Individuals “at the worksite maintain at least six feet of distance from one another to the maximum extent possible;”
  • “Employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises, in accordance with [CDC] recommendations” (although employees may “remove face masks when the employees are situated at their workstations and are more than six feet from other individuals at the workplace, or when an individual is alone in a walled office”);
  • Employers must “provide sanitization materials, such as hand sanitizer that contains at least 60% alcohol and sanitizing wipes;”
  • Ensure that employees “practice regular hand hygiene;”
  • “Routinely clean and disinfect all high-touch areas in accordance with DOH [Department of Health] and CDC guidelines;”
  • “Conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance;”
  • “Immediately separate and send home employees who appear to have symptoms, as defined by the CDC, consistent with COVID-19 illness upon arrival at work or who become sick during the day;”
  • “Promptly notify all employees of any known exposure to COVID-19 at the worksite” consistent with confidentiality requirements under the Americans with Disabilities Act and Equal Employment Opportunity Commission guidance;
  • “Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19 illness;” and
  • “Continue to follow guidelines and directives issued by the New Jersey DOH, the CDC and the Occupational Safety and Health Administration.”

Note that the Order authorizes the New Jersey Department of Labor and Workforce Development (“DOLWD”) to enforce the requirements set forth therein.  Specifically, the DOL is required to “establish an intake mechanism to receive complaints” from employees, create “a process for consideration of such complaints” and coordinate with the “Commissioner of the DOH and any other applicable State entity to establish a process to address such complaints.”  Note the Order further authorizes the DOLWD to “provide compliance and safety training for employers and employees.”

Moreover, note that the Order states that “penalties may be imposed” against employers for failure to comply with the Order and that failure to comply may result in “closure by the Commissioner of the DOH.”   Lastly, while no private right of action exists under the Order, employers may be susceptible to claims under the New Jersey Conscientious Employee Protection Act (“CEPA”) for taking adverse employment action against employees who avail themselves to the protections under the Order.

*  Frank A. Custode is a Partner at Curcio Mirzaian Sirot LLC and the Chair of the Firm’s Employment practice.

New Jersey Creates Rebuttable Presumption of Workers’ Compensation Coverage for COVID-19 Cases Involving “Essential Employees”

On September 14, 2020, Governor Murphy signed SB 2380 into law, which creates a rebuttable presumption of workers’ compensation coverage for “essential employees” who contract COVID-19 during a state of emergency.  The law is retroactive to March 9, 2020.

Pursuant to the law, an “essential employee” is “an employee in the public or private sector, who, during a state of emergency: (1) is a public safety worker or first responder, including any fire, police or other emergency responders; (2) is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities or homes; (3) performs functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel and supplies for conducting essential business and work at home; or (4) is any other employee deemed an essential employee by the public authority declaring the state of emergency.”

Under this law, if an essential employee contracts COVID-19 while “working in a place of employment other than the individual’s own residence . . . there shall be a rebuttable presumption that the contraction of the disease is work-related and fully compensable” for workers’ compensation benefits.  An employer may rebut the presumption “by a preponderance of the evidence showing that the worker was not exposed to the disease while working in the place of employment other than the individual’s own residence.”

This law is a mixed bag for employers in the State of New Jersey.  Indeed, it is likely that the law will insulate employers from liability for lawsuits filed by employees alleging that the employer is responsible for their COVID-19 diagnosis (due to the exclusive remedy for employees seeking relief under the New Jersey Workers’ Compensation Act).  Conversely, it is likely that there will be a significant increase in the number of workers’ compensation claims filed by employees.  Accordingly, the law clearly expands the scope of eligibility and coverage for workers’ compensation benefits, which is beneficial for employees in the State of New Jersey.  In light of the above, the impact of this law on the number of workers’ compensation claims filed by employees in the State of New Jersey should be interesting to monitor in the upcoming months.

*  Frank A. Custode, Esq. is a Partner at Curcio Mirzaian Sirot and the Chair of the Firm’s Employment Practice.

“Training Module” Arbitration Policy In New Jersey Law Against Discrimination Matter Approved By Supreme Court

In the recent decision of Skuse v. Pfizer, Inc., et al., (Docket No. A-86018, 082509, decided on August 18, 2020), the New Jersey Supreme Court held that an arbitration policy that was distributed to employees via email as a “training module” was valid and enforceable.  This is an important decision for both employers and employees in the State of New Jersey.

The employer, Pfizer, Inc., emailed the arbitration policy to its workforce in what was termed a “training module.” The training module described the mandatory arbitration policy on a series of slides and asked the employees to “acknowledge” the policy by clicking an electronic button. The training module further stated that, if the employee did not click the acknowledgment and continued to work for Pfizer for at least sixty days, the employee would be “deemed” to be bound by the arbitration policy. The training module did not request that employees provide signatures conveying they agreed to the terms of the policy. Nor did the module request that the employees memorialize that they expressly agreed to the terms of policy.

Following her termination, Amy Skuse filed a lawsuit against Pfizer as well as several other individual defendants alleging violation of the New Jersey Law Against Discrimination based on religious discrimination and failure to provide reasonable accommodations for her religious beliefs. Thereafter, the defendants moved to dismiss the lawsuit and compel arbitration. The trial court granted defendants’ motion to compel. However, the Appellate Division reversed and invalidated the arbitration provision. The Appellate Division invalidated the arbitration provision which it described as “an inadequate way for an employer to go about extracting its employees’ agreement to submit to binding arbitration for future claims and thereby waive their right to sue an employer and seek a jury trial.”

The Supreme Court, however, reversed the Appellate Division’s judgment and reinstated the trial court’s Order in its August 18 decision.  Specifically, the Supreme Court held that the Agreement and related communications informed Ms. Skuse that, if she remained a Pfizer employee more than sixty days from her receipt of the Agreement, she was deemed to assent to the Agreement.  In addition, the Court determined that Pfizer’s communications with its employees clearly and unmistakably explained the rights that Ms. Skuse would be waiving, and that the use of the word “acknowledge” in this context was appropriate.  While the Court noted that Pfizer should not have labeled its communication explaining its arbitration agreement as a “training module” or training “activity,” that was not enough to invalidate the Agreement.  Accordingly, the Court found that the Agreement was valid and binding.

This is a significant win for employers in the State of New Jersey given that the decision approves an arbitration provision that did not even require the signature of its employees, thereby waiving the rights of said employees to jury trials pertaining to employment law disputes in the State of New Jersey.  Employers should review and update their arbitration provisions accordingly based on this decision.

Conversely, this decision presents an avenue for employees to seemingly unknowingly waive their right to jury trials in matters involving allegations under the New Jersey Law Against Discrimination.  Indeed, employees should not ignore policies of this nature, and should make sure they have a full understanding of their rights when presented with an arbitration provision or agreement by their employer.

*  Frank A. Custode, Esq. is a Partner at Curcio Mirzaian Sirot and the Chair of the Firm’s Employment Practice.