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News and Updates on Employment Law

Category Archives: Discrimination

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The Third Circuit Goes Its Own Way on ADEA Disparate Impact Claims

Posted in Discrimination
The Age Discrimination in Employment Act (ADEA) protects from discrimination of employees who are at least 40 years of age. Recently, in Karlo v. Pittsburgh Glass Works, the United States Court of Appeals for the Third Circuit departed company with three of its sister Circuits by holding that plaintiffs asserting a claim of “disparate impact” under the ADEA may establish a disparate impact with comparisons between subgroups of employees and need not show that a challenged employment practice has had an adverse impact on employees 40 years of age or older compared to its impact on employees under 40. Thus, the Court permitted to go forward with a disparate impact claim based on a comparison between employees at least 50 years of age with employees under 50. The decision will have a profound impact on employers’ assessments of their potential ADEA liability for disparate impact claims and on the way ADEA disparate impact claims are litigated in the Third Circuit.… Continue Reading

New Jersey’s Legislature Attempts to Override Governor’s Objections to “Equal Pay” Bill

Posted in Discrimination
The sponsors of pay equity legislation passed by the New Jersey Senate and Assembly earlier this year have announced that the State Senate will attempt to override Governor Christie's veto of the bill on December 19, 2016. Senate Bill 992/Assembly Bill 2750 would amend the Law Against Discrimination ("LAD") to promote gender pay equality. The New Jersey bill follows a trend of recently enacted state laws, in California, New York, Maryland, and Massachusetts, that aim to make it easier for plaintiffs to bring pay equity claims and subject employers to potentially greater damages.… Continue Reading

NJ Legislators Look to Prohibit Asking Applicants about Salary History

Posted in Discrimination, Employment Agreements
The New Jersey Legislature is poised to take up another thorny issue for employers, salary history. Described by legislative sponsors as an effort to promote pay equity, the legislation would amend the New Jersey Law Against Discrimination to bar employers from asking job applicants about their salary history, or relying on it to determine salary at any stage in the hiring process.… Continue Reading

EEOC Issues New Enforcement Guidance on Retaliation

Posted in Discrimination
According to the Equal Employment Opportunity Commission (“EEOC”), retaliation has become the most frequently alleged basis of discrimination of all charges received by the EEOC. In light of this, and after allowing for public comment on the EEOC’s proposed enforcement guidance issued earlier this year, on August 29, 2016, the EEOC issued its new Enforcement Guidance on Retaliation and Related Issues. This replaces the EEOC’s Compliance Manual Section 8: Retaliation, which was issued in 1998. The enforcement guidance sets forth the EEOC’s position on retaliation and addresses retaliation under each of the statutes enforced by the EEOC by providing a number of illustrative examples. Helpful to employers, the enforcement guidance concludes by providing employers “promising practices” to reduce the risk of violations. A general outline of the enforcement guidance follows.… Continue Reading

NJ Supreme Court Broadens Scope of LAD’s “Marital Status” Protection

Posted in Discrimination
On June 21, 2016, in Smith v. Millville Rescue Squad, the Supreme Court of New Jersey addressed the scope of the marital status protection afforded to employees by the Law Against Discrimination (LAD). The Court ruled that the LAD’s marital status provision is not limited to the state of being single or married but protects employees who have announced “they will marry, have separated, have initiated divorce proceedings or have obtained a divorce.”… Continue Reading

U.S. Supreme Court Clarifies Statute of Limitations for Constructive Discharge Claims

Posted in Discrimination
On May 23, 2016, the U.S. Supreme Court, in Green v. Brennan, held that the statute of limitations for a constructive discharge claim begins to run when the employee gives notice of his or her resignation, not at the time of the employer’s last allegedly discriminatory act giving rise to the resignation. The “constructive discharge” doctrine refers to a situation in which an employer discriminates against an employee to the point that the employee’s working conditions become so intolerable that a reasonable person in the employee’s position would feel compelled to resign.… Continue Reading

N.J. Supreme Court Invalidates Agreements to Shorten the LAD’s Statute of Limitations

Posted in Discrimination
On June 15, 2016, the New Jersey Supreme Court, in Rodriguez v. Raymours Furniture Company, Inc., held that an agreement by an employee to bring claims against his employer within six months of the allegedly wrongful employment action was unenforceable insofar as the agreement applied to claims brought under the New Jersey Law Against Discrimination (“the LAD”). In 1993, the Court had held that New Jersey’s general two-year statute of limitations for personal injury actions provides the appropriate limitations period for LAD claims. In Raymours, the Court ruled that the employer’s attempt to reduce this limitations period to six months undermined the LAD’s specific enforcement scheme for the elimination of discrimination and thus, for public policy reasons, could not be judicially sanctioned. In addition, the Court found that the particular agreement at issue, set forth as part of the boilerplate in the employer’s standard employment application form, constituted an unenforceable contract of adhesion.… Continue Reading

Reminder: NYC Ban the Box Law Effective October 27, 2015

Posted in Discrimination
Employers must be aware of the changes to the New York City Administrative Code effective October 27, 2015, which prohibits employers from asking applicants regarding their criminal histories (typically called “Ban the Box”) prior to a conditional offer of employment. Under the new law called the Fair Chance Act (the “Act”) – which affects employers of four or more employees – employers may not (1) ask the applicant during an interview, (2) include a question on an application, or (3) conduct a separate search using public sources, such as the internet, to elicit information regarding an applicant’s criminal convictions or arrest records. The Act contains limited exceptions for persons who apply for law enforcement positions or for licenses concerning the regulation of firearms and explosives. Also, the Act does not prevent an employer from conducting a background check required by state, federal or local law that mandates criminal background checks or that bars employment based on a criminal history. An example of such requirement is regulations of a self-regulatory organization such as FINRA.… Continue Reading

Employee May Pursue Claims Under FLSA For No Lactation Breaks

Posted in Discrimination, Employment Agreements, Reductions in Force (RIF)
In Lico v. TD Bank et al., a federal court in the Eastern District of New York upheld an employee’s right to bring claims under the Fair Labor Standards Act (FLSA) against her employer, TD Bank ("the Bank"), for failure to provide adequate facilities and time for lactation breaks. The FLSA requires employers covered by the FLSA to provide employees (1) reasonable unpaid time at work to express breast milk for up to one year following childbirth and (2) a place, other than a restroom, that is not visible and is free from intrusion to do so.… Continue Reading

Paid Suspension Not Adverse Employment Action Under Title VII, According to Third Circuit Court of Appeals

Posted in Discrimination
In Jones v. Southeastern Pennsylvania Transportation Authority, the Third Circuit Court of Appeals concluded that a paid suspension is not an adverse employment action in the “substantive discrimination context.” A predicate for a discrimination claim under the various anti-discrimination laws, requires the plaintiff to show she suffered an “adverse employment action,” generally described as an action or incident substantially serious to alter an employee’s compensation, terms, conditions, or privileges of employment. In the absence of an adverse employment action, a discrimination claim fails. Now, a paid suspension, as determined by the Circuit Court, is not significantly sufficient to affect the employment relationship to create liability under Federal and Pennsylvania State anti-discrimination laws.… Continue Reading

Jury Awards $2.2 Million to Employees Over DNA Tests in Violation of GINA in “Devious Defecator” Case

Posted in Discrimination
A federal court jury in Georgia recently awarded $2.22 million to two employees in what is believed to be the first jury verdict in a Genetic Information Nondiscrimination Act (“GINA”) employment case since the law went into effect in 2008. Dubbed the “devious defecator” case by the court, Lowe v. Atlas Logistics Group Retail Services (Atlanta), LLC involved an employer’s testing of two employees’ facial cheek (or “buccal”) swabs to identify whether either was the individual who had been repeatedly defecating on the employer’s premises. All jokes aside, the decision is notable, not only because it is one of the few, if only, jury verdicts awarded under GINA, but because it serves as an important warning to employers that GINA may apply more broadly than some initially believed, while also possibly providing a blueprint for other courts on how to interpret the statute.… Continue Reading

Supreme Court Rules an Employer’s Failure to Accommodate a Job Applicant’s Religious Practice Violates Title VII Without Proof the Applicant Requested An Accommodation

Posted in Discrimination
In its much anticipated decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court has held that a prospective employee who was turned down for a job because she wore a headscarf, which the employer suspected was worn for religious reasons, can proceed with her claim of religious discrimination under Title VII of the Civil Rights Act of 1964, although when she applied for the job the applicant never requested permission to wear the headscarf as an accommodation to her religious practices. Employers should be aware that the Court’s decision (1) imposes on an employer an affirmative obligation to reasonably accommodate the religious practices of its employees and prospective employees and (2) exposes an employer to potential liability for intentional discrimination, and thus for compensatory and punitive damages, for failing to make such accommodations.… Continue Reading

U.S. Supreme Court Requires EEOC to Attempt Conciliation Before Suing

Posted in Discrimination
In Mach Mining LLC v. Equal Employment Opportunity Commission, the United States Supreme Court was presented with the issue of whether the EEOC must attempt to conciliate an employer’s alleged violation of Title VII of the Civil Rights Act of 1964 before initiating a lawsuit against the employer and, if so, to what extent a court may review those conciliation efforts. The Court concluded that the EEOC must attempt to engage in conciliation, but that the scope of a court’s review of the EEOC’s efforts is narrow. Post-Mach Mining, an employer that attempts to challenge a lawsuit brought by the EEOC on the grounds that the agency’s conciliation efforts were insufficient will be fighting an uphill battle.… Continue Reading

U.S. Supreme Court Reinstates Pregnant Worker’s Discrimination Case

Posted in Discrimination
In Young v. UPS, the United States Supreme Court reinstated a UPS worker’s pregnancy discrimination lawsuit under the Pregnancy Discrimination Act, finding that both the District Court and the Court of Appeals for the Fourth Circuit had applied the wrong standard in upholding UPS’s light-duty-for-injury policy, under which the company refused a light-duty accommodation to a pregnant employee back in 2006. While the Court did not determine whether the employee suffered any actual discrimination, or whether UPS’s policy was impermissible under the PDA – those issues were remanded to the Fourth Circuit – the Court did adopt a modified version of the familiar burden-shifting framework of McDonnell Douglas for analyzing pregnancy discrimination claims under the PDA. The Court’s decision in Young is also noteworthy in that it declined to give deference to the EEOC’s July 2014 guidance on pregnancy discrimination, which we have previously discussed, and, in fact, rejected the argument that the PDA creates “an unconditional favored nations status” for pregnant workers.… Continue Reading

Short and Concise Release Agreement Saves the Day for Employer According to NY Federal District Court

Posted in Discrimination
On February 24, 2015, in Brewer v. GEM Industrial Inc., the United States District Court for the Northern District of New York found a two-plus page separation agreement sufficient to dismiss the plaintiff's court complaint because it was short, understandable by a lay person and included a provision notifying the employee of the right to seek counsel before signing it. The plaintiff, Samuel Brewer, sued his employer claiming discrimination in violation of Title VII of the Civil Rights Act of 1964 related to his termination. Before filing his discrimination lawsuit, he executed a separation agreement containing a release of claims. His employer moved to dismiss the lawsuit based on the release in the separation agreement.… Continue Reading

New Jersey Appellate Division Decision Stresses Importance of Meaningful Anti-Harassment Policy and Training

Posted in Discrimination, Policies/Handbooks
An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for allegations of sexual, racial, or other harassment under New Jersey law. The New Jersey Appellate Division in Dunkley v. S. Coraluzzo Petroleum Transporters recently reinforced this fact, and the decision provides a helpful reminder to employers that adopting clear anti-harassment policies, providing regular training to its workforce, and immediately addressing allegations of harassment/discrimination once presented, are important factors that may help them avoid liability for the conduct of employees who violate such policies.… Continue Reading

New Executive Orders Impact Government Contractors in Their Capacity as Employers

Posted in Discrimination
President Obama recently signed two Executive Orders that impact government contractors in their capacity as employers. Executive Order 13672 (July 21, 2014) amends Executive Order 11246 (September 24, 1965) by adding “sexual orientation” and “gender identity” to the list of personal characteristics that cannot be used by government contractors to discriminate against any employee or applicant for employment. As originally issued, Executive Order 11246 proscribed discrimination on account of race, color, religion, sex, and national origin – characteristics protected by Title VII of the Civil rights Act of 1964 (Title VII). Sexual orientation and gender identity are not specifically identified in Title VII as protected characteristics. These Executive Orders also apply to subcontractors and vendors of government contractors. Executive Order 13672 leaves in tact an earlier amendment to Executive Order 11246 that granted an exemption for government contractors qualifying as religious organizations in terms of the ability of these organizations to hire individuals of a given religion. The Department of Labor is charged with issuing regulations within 90 days implementing the new Executive Order.… Continue Reading

EEOC Issues Enforcement Guidance on Pregnancy Discrimination

Posted in Discrimination
On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) — the agency responsible for the enforcement of federal anti-discrimination laws — issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (“the Guidance”). The Guidance primarily discusses the requirements of the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but also addresses additional federal laws that touch upon pregnancy and related conditions, including the Family and Medical Leave Act (FMLA), the Genetic Information Nondiscrimination Act (GINA) and the Patient Protection and Affordable Care Act (ACA).… Continue Reading

EEOC Issues Guidance Regarding Religious Dress and Grooming Practices

Posted in Discrimination
The Equal Employment Opportunity Commission (“EEOC”) -- the federal agency responsible for the enforcement of federal anti-discrimination laws -- recently issued guidance on religious accommodation under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically focusing on religious dress and grooming practices. The publication, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” along with its accompanying Fact Sheet, are designed to assist employers to comply with their legal responsibilities under Title VII.… Continue Reading

New EEOC/FTC Joint Informal Guidance on Employers’ Use of Background Checks into Workers’ Criminal Records

Posted in Discrimination
On March 10, 2014, the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) issued their first joint guidance on employer use of background checks in hiring or firing decisions. The use of background checks by employers in personnel decisions is becoming a more tricky road to navigate. The EEOC enforces the Federal anti-discrimination laws and the FTC enforces the Fair Credit Reporting Act (FCRA), all of which can be implicated in the background check process, particularly when a third party credit reporting agency becomes involved. The EEOC/FTC joint guidance is reduced to two brief, non-technical documents -- one for employers and another for job applicants respectively--called “Background Checks: What Employers Need to Know,” and “Background Checks: What Job Applicants and Employees Should Know.” The guidance for employers describes the information and documentation in a background check report that may be used lawfully to make personnel decisions about a job applicant or employee. The document for applicants identifies the employer’s obligations particularly when relying upon a background check to disqualify an applicant or employee.… Continue Reading

NJ Supreme Court Grants Leave to Appeal to Employee After NJ Appellate Division Permits Indictment Arising From Her Theft of Employer Documents to Prove LAD and CEPA Claims

Posted in Discrimination
The New Jersey Supreme Court recently granted defendant Ivonne Saavedra’s leave to appeal the Appellate Division’s decision in State v. Saavedra, the subject of a previous post, affirming the trial court’s denial of her motion to dismiss an indictment charging her with official misconduct for stealing confidential documents from her employer to support her claims under… Continue Reading

NJ Appellate Division Permits Criminal Indictment Against Employee Who Stole Employer’s Documents in Connection with LAD and CEPA Claims

Posted in Discrimination
The Superior Court of New Jersey, Appellate Division, has held that a public sector employee can be criminally indicted for stealing employer documents to support her claims under the New Jersey Conscientious Employee Protection Act (CEPA) and New Jersey Law Against Discrimination (LAD). In State of New Jersey v. Saavedra, the Appellate Division found, in a 2-1 decision, that a criminal judge is not required to perform a Quinlan analysis when deciding a motion to dismiss an indictment charging the employee with second-degree official misconduct and third-degree theft of public documents. Instead, the State merely must introduce evidence to support a prima facie case that the defendant committed the crime. In dissent, Judge Simonelli disagreed with the majority, concluding that the doctrine of fundamental fairness should be expanded to preclude criminal prosecution of employees for theft or official misconduct for taking confidential employer documents while engaged in protected activity pursuant to the whistleblower and anti-discrimination laws.… Continue Reading

New Jersey Gender Equity Notice Requirement

Posted in Discrimination
Beginning on January 6, 2014, New Jersey employers with 50 or more employees (whether those employees work inside or outside of New Jersey) are required to post the new mandatory gender equity notice which was released by the New Jersey Department of Labor and Workforce Development (NJDLWD) in December 2013. The notice implements a September 2012 amendment to the New Jersey Equal Pay Act. It informs employees of their right to be free of gender inequity or bias in pay, compensation, benefits, or other terms and conditions of employment under both federal and New Jersey law. Employers are required to conspicuously post the gender equity notice in a place accessible to all employees. In the event that a covered employer has an internet site or intranet site for exclusive use by its employees and to which all employees have access, posting of the gender equity notice on the covered employer's internet site or intranet site will satisfy the conspicuous posting requirement.… Continue Reading