Discrimination

Senate Passes Amendment to Restore Americans With Disabilities Act to Protect Disabled Employees From Discrimination

September 13, 2008 | by Jonathan I. Nirenberg

On September 11, 2008, the Senate unanimously voted in favor of the ADA Amendments Act of 2008. If it were to become law, the Act would “restore the intent and protections of the Americans with Disabilities Act of 1990” (the ADA) by protecting many more disabled individuals from discrimination. The ADA is a federal employment law that prohibits discrimination against individuals with disabilities, both in the context of employment and places of public accommodation such as restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. However, the ADA has been interpreted so narrowly that the vast majority of cases brought under it are dismissed, primarily because the individuals suing are unable to meet the statute’s definition of”disability.”

As discussed in a previous article, on June 25, 2008 the United States House of Representatives overwhelmingly approved a slightly different version of the ADA Amendments Act, called the ADA Restoration Act. If the House of Representatives approves the Senate’s version of the Act, which seems likely, then the President would need to sign it into law before it would go into effect.

The ADA Amendments Act would reverse many United States Supreme Court cases which have interpreted the ADA narrowly and limited the scope of its protection. For example, it would amend the ADA to make it clear that:

Employee Rights Laws Part 3: Overview of New Jersey Employment Law Statutes

September 1, 2008 | by Jonathan I. Nirenberg

Employee Rights Laws Part 3: Overview of New Jersey Employment Law Statutes

In most states, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the third part of a four part series, discusses some of the most important exceptions to employment at will under New Jersey. The first part of the series discusses some of the most important federal anti-discrimination laws. The second part describes many other important federal “wrongful termination” laws. Part four reviews employee rights under New York State and New York City law.

Employee Rights Laws Part 1: Overview of Federal Anti-Discrimination Employment Laws

August 17, 2008 | by Jonathan I. Nirenberg

Employee Rights Laws Part 1: Overview of Federal Anti-Discrimination Employment Laws

In most states, including New York and New Jersey, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the first part of a four part series, discusses some of the most important federal anti-discrimination laws. The second part describes many other important federal “wrongful termination” laws. Part three addresses some of the most important exceptions to employment at will under New Jersey law. Part four reviews employee rights laws under New York State and New York City law.

Federal Anti-Discrimination Employment Laws

The following is an overview of some of the most important federal anti-discrimination laws. This is not intended to be a comprehensive list of all federal laws prohibiting discrimination in employment. It is also important to understand that not every federal employment law applies to every employee. If you believe your employment law rights have been violated, you should contact a knowledgeable, dedicated and experienced employment lawyer.

Age Discrimination in Employment Act of 1967 (ADEA)

Protects employees who are at least 40 years old from age discrimination.

Prohibits employers from harassing employees who are 40 years old or older because of their age.

Makes it unlawful to retaliate against individuals who object to age discrimination.

Americans with Disabilities Act of 1990 (ADA)

Prohibits employers from discriminating against employees who are disabled, perceived to be disabled, or have a record of a disability.

Requires employers to provide reasonable accommodations to allow disabled employees to perform the essential functions of their jobs.

Protects individuals who complain aboutdisability discrimination or who request a reasonable accommodation for a disability, by prohibiting retaliation.

Equal Pay Act of 1963 (EPA)

Prohibits employers from discriminating between men and women in terms of salary and other wages if they hold the same job under similar working conditions.

False Claims Act of 1986 (FCA)

Allows individuals to file whistleblower actions (called qui tam actions) against individuals who defrauded the federal government, including health care fraud, fraud by defense contractors, and fraud in other federal spending programs.

Permits some whistleblowers who bring successful claims under the False Claims Act to receive a portion of any damages recovered.

Genetic Information Non-Discrimination Act of 2008 (GINA)

Prohibits employment discrimination on the basis of genetic information. Additional information about GINA is available in a previous article.

Occupational Safety & Health Act of 1970 (OSHA)

Requires employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.

Makes it unlawful for employers to fire or otherwise discriminate against employees who file complaints, testify, or exercise other right under OSHA.

Older Workers Benefit Protection Act of 1990 (OWBPA)

Prohibits companies from denying employee benefits to older employees because of their age, with limited exceptions.

Adds numerous requirements before a settlement of an age discrimination claim to be enforceable under the ADEA, such as requirements that the employee is:
1. Provided the ages of employees who were laid off and retained in a reduction in force;
2. Provided at least 21 days to review the agreement (45 days in the case of a mass layoff);
3. Given at least 7 days to revoke the agreement after signing it; and
4. Advised to consult a lawyer before accepting a severance offer that contains a waiver of rights.

Pregnancy Discrimination Act (PDA)

Prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions, as forms of unlawful.

Section 1981 of the Civil Rights Act of 1866 (Section 1981)

Prohibits discrimination due to race or ethnicity in the making, performance, modification, and termination of contacts, including employment contracts, or with respect to the benefits, privileges, terms, and condition of a contractual relationship.

Title VII of the Civil Rights Act of 1964 (Title VII)

Prohibits discrimination on the basis of race, sex (gender) color, national origin, and religion.

Makes it illegal for an employer to harass an employee due to race, sex (gender) color, national origin, or religion, including prohibiting sexual harassment.

Protects individuals who make complaints of discrimination or harassment based on race, sex (gender) color, national origin, and religion, by prohibiting retaliation.

Uniformed Service Employment and Reemployment Rights Act of 1994 (URESSA)

Prohibits employers from discriminating against an employee because of his or her service in the Armed Forces Reserve, the National Guard, or other uniformed services.

Entitles veterans, reservists, National Guard members, and other members of the uniformed services to return to their jobs in the private sector after an absence for military service or training.

Worker Adjustment and Retraining Notification Act of 1994 (WARN Act)

Requires most companies with 100 or more employees to provide at least 60 days advance notice of a mass layoff or plant closing.

United States Supreme Court Makes it Easier to Prove Age Discrimination

July 16, 2008 | by Jonathan I. Nirenberg

Supreme Court Rules Employer Has Burden to Prove Adverse Employment Action Based on Reasonable Factors Other Than Age

The Age Discrimination in Employment Act of 1967, 29 U.S.C. 621, et seq. (“ADEA”), is a federal law that prohibits discrimination in employment because of age. On June 19, 2008, the United States Supreme Court made it easier for employees to prevail in disparate impact claims under the ADEA, by placing an important burden of proof on the employer. A disparate impact case under the ADEA is when an individual seeks to prove that his or her employer illegally discriminated against him or her because of age, even though it did not necessarily intend to discriminate, because it used a specific test, requirement, or practice that disproportionately harmed employees who are at least 40 years old.

In that case, Meacham v. Knolls Atomic Power Laboratory, the Supreme Court interpreted a provision of the ADEA that permits an employer to take an adverse employment action against an employee, even if the employment action is “otherwise prohibited” by the ADEA, as long as the adverse action is “based on reasonable factors other than age.” The Supreme Court ruled that if an employer seeks to rely on that defense, it has the burden to prove that its decision was based on a reasonable factor other than age.

Proposed Law to Protect Disabled Employees From Discrimination

July 10, 2008 | by Jonathan I. Nirenberg

House of Representatives Approves Amendments to Restore the Americans With Disabilities Act to Protect Disabled Employees From Discrimination.

On June 25, 2008, the United States House of Representatives approved an amendment to the Americans with Disabilities Act of 1990 (“ADA”) by a vote of 402 to 17. The ADA is a federal law which prohibits discrimination against individuals with disabilities, both in the context of employment and places of public accommodation, such as restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. However, courts have interpreted the ADA so narrowly that according to at least one study over 97% of cases filed under the ADA are dismissed, primarily due to the fact that the individual bringing the case could not meet the statute’s definition of “disability.”

The United States Senate still has not voted on the bill, which is known as the ADA Restoration Act of 2008. If the Senate were to approve the Act, it would need to be signed into law by the President before it would go into effect.

New Jersey Supreme Court Clarifies that Supervisors Are Liable for Discrimination if They Actively and Purposefully Participated in it

July 10, 2008 | by Jonathan I. Nirenberg

On May 28, 2008, the New Jersey Supreme Court made an important ruling that helps to clarify when a supervisor or manager can be held legally responsible for his or her participation in discrimination and harassment under the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. (“LAD”). The LAD makes it illegal for a company to discriminate against or harass its employees on the basis of their race, creed, color, national origin, nationality, ancestry, age, sex, pregnancy, familial status, marital status, domestic partnership status, sexual orientation, military service, or mental or physical disability.

The case, Cicchetti v. Morris County Sheriff’s Office, first recognizes that although the LAD makes it illegal for a company to discriminate against its employees, it does not make it illegal for an individual, such as a supervisor or manager, to discriminate. However, the case further recognizes that the LAD does make it unlawful for an individual to “aid, abet, incite, compel or coerce the doing of any of the acts forbidden” by the LAD. N.J.S.A. § 10:5-12(e). The Supreme Court then ruled that an employee who brings a claim of discrimination or harassment against a supervisor must prove that the supervisor engaged in “active and purposeful conduct” before he or she can be held liable for aiding and abetting discrimination or harassment. Thus, the Supreme Court clarified that it is possible to sue a supervisor who participated in discrimination or harassment, but the employee must prove that the individual was actively and intentionally involved in the discrimination to prevail on that claim.

Illegal to Discriminate Because of an Abortion

July 9, 2008 | by Jonathan I. Nirenberg

On May 30, 2008, in the case of Doe v. C.A.R.S. Protection Plus, Inc, the United States Court of Appeals for the Third Circuit ruled that Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e, et seq. (“Title VII”) protects a woman from discrimination because she had an abortion. The Third Circuit is the federal appellate court that includes the state of New Jersey, as well as Pennsylvania, Delaware, and the Virgin Islands.

Title VII makes it illegal for employers with 15 or more employees to discriminate against an employee because of his or her race, color, religion, sex, or national origin. The Pregnancy Discrimination Act of 2000 amended Title VII to clarify that the prohibition of discrimination because of sex includes discrimination because of “pregnancy, childbirth, or related medical conditions.” In C.A.R.S., the Court concluded that since an abortion is a pregnancy-related medical condition, it is illegal to fire or otherwise discriminate against an employee because she has had an abortion. This was the first time an appellate court covering the state of New Jersey had considered whether it is illegal to fire an employee because she had an abortion.

In reaching the conclusion that the Pregnancy Discrimination Act prohibits employers from discriminating against individuals who have had an abortion, the Third Circuit relied on the 1996 decision of the Sixth Circuit Court of Appeals, Turic v. Holland Hospitality, Inc., which reached the same conclusion. The Court also gave significant consideration to a regulation of the Equal Employment Opportunity Commission (“EEOC”) which specifically states that a woman is protected from being fired because she is pregnant or has had an abortion. It also considered the legislative history of the Pregnancy Discrimination Act, which expressly recognizes that no employer may, for example, “fire or refuse to hire a woman simply because she has exercised her right to have an abortion.”

Genetic Information Nondiscrimination Act

July 9, 2008 | by Jonathan I. Nirenberg

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act (GINA”) of 2008. The statute had previously passed the Senate unanimously and the House by a 414 to 1 vote. Upon the President signing it, GINA went into effect immediately.

The Genetic Information Nondiscrimination Act prohibits discrimination on the basis of genetic information with respect to health insurance and employment. Congress passed it in recognition that there are great opportunities for medical advancement from sequencing the human genome and other genetic advances. However, those advances are threatened by the potential for employers and health insurance companies to misuse genetic information to discriminate. Congress noted the historical discrimination and oppression of individuals who were presumed to have genetic defects, specifically mentioning mental retardation, mental disease, epilepsy, blindness, and hearing loss in the statute. Congress also recognized the prevalence of genetic discrimination in the workplace.

As it applies to the context of the workplace, the Genetic Information Nondiscrimination Act makes it unlawful to use genetic information as a reason to refuse to hire or fire, or to discriminate against any employee with respect to compensation or other terms, conditions, or privileges of employment. It also prohibits employers from using genetic information to limit, segregate, or classify employees in a way that deprives employees of job opportunities, or otherwise adversely affects them. With limited exceptions, it also prohibits employers from seeking genetic information regarding an employee or a family member.