Gibbons Law Alert

Gibbons Law Alert

Category: Discrimination

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

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Posted in Discrimination / Policies and Handbooks

On November 3, 2014

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.

New Executive Orders Impact Government Contractors in Their Capacity as Employers

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Posted in Discrimination

On August 11, 2014

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.

EEOC Issues Enforcement Guidance on Pregnancy Discrimination

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Posted in Discrimination

On July 22, 2014

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).

EEOC Issues Guidance Regarding Religious Dress and Grooming Practices

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Posted in Discrimination

On June 26, 2014

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.

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

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Posted in Discrimination

On April 17, 2014

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.

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

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Posted in Discrimination

On March 26, 2014

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 New Jersey’s Conscientious Employee Protection Act (“CEPA”) and the Law Against Discrimination (“LAD”). The majority in the Appellate Division was not persuaded by Saavedra’s argument that her actions were protected under Quinlan v. Curtiss-Wright Corp., also the subject of a previous post, where the Supreme Court held that an employee who was allegedly terminated for using stolen documents in litigation against her employer could assert a claim of retaliation. A dissenting opinion in the Appellate Division in Saavedra, authored by Judge Simonelli, concluded that the indictment should be dismissed with prejudice. For Judge Simonelli, it was fundamentally unfair to criminally prosecute an employee for taking employer documents while engaged in protected activity pursuant to CEPA or the LAD because the law does not give fair warning that the conduct is illegal. Though Saavedra concerns a public employee/employer, it has important implications for private employers as well. The Gibbons Employment & Labor Law Department will continue to monitor developments in the case...

New Jersey Pregnancy Discrimination Law Effective Immediately

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Posted in Discrimination

On January 23, 2014

On January 21, 2014, Governor Chris Christie signed into law S2995/A4486, which amends the New Jersey Law Against Discrimination (LAD) to prohibit discrimination based on pregnancy, childbirth or related medical conditions, including recovery from childbirth, in the workplace. This measure is effective immediately. The legislation requires employers to treat women affected by pregnancy in a manner similar to employees who are not affected by pregnancy, but who share in their ability or inability to work.

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

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Posted in Discrimination

On January 9, 2014

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.

New Jersey Gender Equity Notice Requirement

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Posted in Discrimination

On January 2, 2014

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.

NJLAD Amended to Target Potential Pay Discrimination

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Posted in Discrimination / Policies and Handbooks

On October 3, 2013

On August 28, 2013, New Jersey Governor Christie signed Assembly Bill No. 2648, amending the New Jersey Law Against Discrimination (“NJLAD”) to prohibit employers from retaliating against employees who disclose to or request information from other employees or former employees regarding job title, occupational category, pay (including benefits), gender, race, ethnicity, military status and national origin for the purpose of investigating or taking legal action against potential pay discrimination. The amendment, effective immediately, does not require employees or former employees to divulge this information.

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