Discrimination

DCR Revises Regulation Based on Jonathan Nirenberg’s Suggestion

December 3, 2024 | by Jonathan I. Nirenberg

The New Jersey Division on Civil Rights recently modified its proposed regulation regarding disparate impact claims based on a comment that I submitted earlier this year.

On June 3, 2024 the DCR initially proposed the new regulation to addresses disparate impact claims under the New Jersey Law Against Discrimination (“LAD”). A disparate impact claims is when a practice or policy that appears to be neutral on its face has a disproportionate negative impact on people in a particular legally-protected class, such as based on their age, race, national origin, gender, disability or sexual orientation.

The DCR’s proposed regulation would make it clear that the LAD prohibits practices and policies that have a disparate impact on members of a legally protected class even if it was not intended to be discriminatory. In other words, it is form of unlawful discrimination.

Court Recognizes New Jersey Law Against Discrimination’s Broad Definition of Disability

August 1, 2024 | by Jonathan I. Nirenberg

In a recent unpublished decision, New Jersey’s Appellate Division make it clear that an employee does not have to have a severe or permanent impairment to have a viable disability discrimination to be protected by the New Jersey Law Against Discrimination (“LAD”).

The case was filed by Bart Algozzini, who worked for DGMB Casino, LLC doing business as Resorts Casino Hotel (“Resorts”) as its Director of Slot Operations. Mr. Algozzini took a medical leave after he suffered second and third-degree burns over seventy percent of his body after his boat exploded. He was hospitalized for a month, during which he was placed in a medically-induced coma for more than two weeks. After leaving the hospital, he was in a rehab facility for a week-and-a-half, followed by over three months of outpatient physical therapy sessions.

While Mr. Algozzini was on his medical leave, Resorts eliminated his position as the Director of Slot Operations and instead created two new positions: Slot Service Manager and Slot Technical Manager. Resorts gave Mr. Algozzini the position of Slot Service Manager, a job with fewer responsibilities and that paid $23,000 less per year than his former position as its Director of Slot Operations. Resorts did not eliminate any other positions at that time.

Taxation of Employment Law Settlements

July 6, 2024 | by Jonathan I. Nirenberg

When you settle an employment law case, typically most or all of the money you receive will be taxable. Nonetheless, it is both common and important to discuss the tax allocation as part of the settlement negotiation, including what portion will be reported on an IRS form W-2, and what portion will be reported on a 1099.

While I am an employment lawyer rather than a tax expert, below is my understanding regarding the taxability of employment law settlements under federal law. These issues can be complex and have significant consequences to you, so you should consult with a tax expert before you make any decisions.

W-2 Payments: Lost Wages

Non-Disparagement Clause Cannot Prevent Employee From Discussing Discrimination

May 7, 2024 | by Jonathan I. Nirenberg

Today, the New Jersey Supreme Court ruled that the New Jersey Law Against Discrimination (“LAD”) prohibits non-disparagement agreements that have the impact of preventing an employee from discussing the facts of their discrimination, harassment or retaliation claim.

Non-disparagement clauses are very common in settlement agreements in employment law cases. Typically, they prevent the employee from saying anything negative about their former employer.

The case interpreted a 2019 amendment to the LAD that was passed in response to the #MeToo movement. Specifically, the legislature amended the LAD to deem that any provision in a settlement agreement that “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment . . . shall be deemed against public policy and unenforceable.”

Discriminatory Job Transfer Can be Actionable Without Significant Harm

April 24, 2024 | by Jonathan I. Nirenberg

The United States Supreme Court recently ruled that an employee who brings a lawsuit alleging she was transferred to another position for a discriminatory reason does not have to prove the transfer caused her significant harm.

Jatonya Clayborn Muldrow is a police sergeant in the St. Louis Police Department. She served as a plainclothes officer in the Department’s specialized Intelligence Division. In that position, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and was the head of the Gun Crimes Unit. As part of her position, she also was a Task Force Officer with the FBI, which gave her FBI credentials, an unmarked vehicle that she took home, and the right to conduct investigations outside of St. Louis.

After a new Intelligence Division commander took over the Division, he decided to transfer Sergeant Muldrow out of the unit so he could replace her with a male Sergeant who he considered a better fit for the unit’s “very dangerous” work. As a result, Sergeant Muldrow was reassigned to a uniformed position in its Fifth District.

Court Dismisses Failure to Accommodate Claim But Allows Related Retaliation Claim to Proceed

February 1, 2024 | by Jonathan I. Nirenberg

Recently, the District of New Jersey dismissed an employee’s disability discrimination and failure to accommodate disability claims, but did not dismiss her related retaliation claim.

Amber Ray worked as a Project Manager/Estimator for Elecnor Hawkeye, LLC. Before she began working for Elecnor, Ms. Ray had been diagnosed with Lupus. However, sometime after Elecnor fired her, she learned she had been misdiagnosis and actually had Hypermobile Ehlers-Danlos syndrome, which is a complex musculoskeletal condition, and several other auto-immune conditions.

On Friday, July 30, 2021, Ms. Ray sent a text message to her supervisor, Hal Meeler, informing him that she would be working from home that day. In response, Mr. Meeler told Ms. Ray she was required to work in the office, and he would discuss the issue with her on Monday.

Gerber Must Bring Witness to New Jersey to Testify in Discrimination Lawsuit

January 8, 2024 | by Jonathan I. Nirenberg

A recent decision from the New Jersey Appellate Division affirms a trial court’s order requiring Gerber Products Company to bring a witness from Switzerland to New Jersey, at Gerber’s expense, to testify at a deposition in a discrimination lawsuit. A deposition is a formal interview under oath used to obtain testimony from witnesses in lawsuits.

Denise Willson is a former Vice President of Medical Sales North America for Nestlé Infant Nutrition. Ms. Willson sued Gerber Products Company, Nestlé Healthcare Nutrition, Inc., Nestlé Holdings, Inc., and Gerber’s President and CEO, William Partyka, alleging they discriminated against her because of her age and gender. More specifically, she claims they fostered a “boys club” culture, paid her less than her younger male peers, denied her a promotion to the position of general manager, and ultimately fired her in retaliation for her complaints about the discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

As part of her lawsuit, Ms. Willson alleges she spoke to Mr. Partyka’s supervisor, Alexandre Costa, about the retaliatory termination, gender discrimination and Gerber’s failure to promote her. When Ms. Willson’s lawyers sought to take Mr. Costa’s deposition, the defendants objected. They argued that Mr. Costa lives in Switzerland, claims his meeting with Ms. Wilsson was about sales rather than her allegations of discrimination and retaliation, denies he was involved in the decision to terminate her employment or has any other information pertinent to her case, and that requiring him to come to New Jersey for his deposition supposedly would “create a tremendous burden on [his] business.” The defendants also argued that neither Mr. Costa nor his employer, Nestlé Enterprises S.A., is a party to the lawsuit.

New Jersey Court Analyzes Time Off as Reasonable Accommodation for Disability

October 11, 2023 | by Jonathan I. Nirenberg

Under the New Jersey Law Against Discrimination (“LAD”), time off can be a reasonable accommodation for a disability as long as the time off sought is reasonable. A recent decision from the District of New Jersey provides a good example of how Courts analyze this issue at the early stage of a case, as well as a dispute about the employee’s ownership interest in the business.

Michaela Wark worked for J5 Consulting, LLC as a senior consultant in New Jersey. In June 2020, Michael Johnson, who is the Chief Executive Officer and an owner of J5, told Ms. Wark that he was promoting her to a Partner of J5 and making her a 5% owner of the company.

Mr. Johnson provided Ms. Wark a letter confirming her promotion and 5% ownership, which states that she would lose her ownership rights if she was “fired for gross negligence or misconduct.” The letter also say Ms. Wark “must be employed by the company six months prior to sale for the rights of ownership to apply.”

Catholic School Did Not Violate Law Against Discrimination by Firing Unmarried Employee When She Got Pregnant

August 16, 2023 | by Jonathan I. Nirenberg

The New Jersey Supreme Court recently ruled that religious institutions can fire an employee for failing to follow the tenets of their religions, such as a Catholic school firing an employee because she had premarital sex.

Victoria Crisitello worked for the St. Theresa School as an art teacher and toddler room caregiver. St. Theresa’s requires its employees, including Ms. Crisitello, to sign employment agreements that require them to follow the teachings of the Catholic Church. For example, they had to agree to follow the Policies on Professional and Ministerial Conduct adopted by the Archdiocese of Newark.

Among other things, those Policies forbid engaging in “[a]dultery, flagrant promiscuity or illicit co-habitation.” Similarly, the Roman Catholic Church prohibits sex outside of marriage, which the Church considers to be a sin.

New Federal Protections for Pregnant Employees

July 22, 2023 | by Jonathan I. Nirenberg

Reasonable Accommodations for Pregnancy and Childbirth

On June 27, 2023, a new federal employment law, the Pregnant Workers Fairness Act, went into effect. The Act prohibits employers from:

Denying an employee a reasonable accommodations for pregnancy, childbirth, and related medical conditions unless the employer can show the accommodation would impose an undue hardship on the operation of its business;