Discrimination

NYC Bans Salary Inquires from Job Applicants

May 9, 2017 | by Jonathan I. Nirenberg

On May 4, 2017, New York City Mayor Bill DeBlasio signed into law an amendment to the New York City Human Rights Law (“NYCHRL”). Under this new law, which is intended to reduce pay discrimination, New York City employers cannot ask or say anything to job applicants or the applicant’s current or former employers to try to learn about the applicant’s salary history. However, they are permitted to tell job applicants about the anticipated salary or salary range for the position.

The new law also prohibits New York City employers and employment agencies from relying on a job applicant’s salary history when they make decisions about salary, benefits or other compensation during the hiring process. That expressly includes prohibiting using such information when negotiation an employment contract with a new employee. However, the prohibition does not apply to: (1) job transfers and promotions within the same employer; (2) instances where there is another federal, state or local law that specifically permits or requires salary history to be disclosed or verified to determine an employee’s compensation; or (3) public employees whose salary, benefits or compensation is determined by a collective bargaining.

In addition, this amendment to the NYCHRL prohibits employers and employment agencies from searching public records to try to find out about a job applicant’s salary history. But they can obtain background checks on job candidates, even if the background check includes salary history information, as long as they do not use that information when making decisions about salary, benefits or compensation during the hiring process.

Unemployment Benefits Do Not Reduce Damages from Discrimination

March 21, 2017 | by Jonathan I. Nirenberg

Earlier this month, in a precedent-setting opinion, New Jersey’s Appellate Division ruled that the unemployment insurance benefits a former employee receives after being fired do not reduce the amount of lost wages the employee can recover in an employment discrimination lawsuit.

Rex Fornaro worked as a flight instructor for Flightsafety International, Inc. After Flightsafety fired him, he brought a disability discrimination and retaliation lawsuit against it under the New Jersey Law Against Discrimination (“LAD”).

After a trial, a jury concluded that Flightsafety had discriminated against Mr. Fornaro because he is disabled and because he requested a reasonable accommodation for his disability. The jury awarded him $83,000 in past economic damages (“back pay”), but did not award him anything for his alleged emotional distress. A judge subsequently awarded Mr. Fornaro’s lawyers a total of approximately $380,000 in attorneys’ fees and costs.

Employee’s Disability Harassment Claim Can Proceed to Trial

December 29, 2016 | by Jonathan I. Nirenberg

Earlier this month, the United States District Court for the District of New Jersey permitted an employee to continue with his claim that his employer harassed him because he is disabled, but dismissed his other disability discrimination claims.

Francis Gavin worked for Haworth, Inc. in various sales roles. Mr. Gavin has a back disability which required him to undergo several surgeries and time off from work. Most recently, he took off two weeks after lumbar spinal fusion surgery in August 2012. He returned to work gradually, with medical restrictions for approximately 4 ½ months.

After he returned to work, Mr. Gavin’s supervisor, Henry Pizoli, frequently made disparaging comments about his back condition. For example, he commented about the fact that Mr. Gavin had to wear a duragesic patch and a back brace, saying it “doesn’t look good in front of customers” and asked him in front of a customer if he would be “able to work normally without this [back condition] being the center of attention.” Mr. Pizoli also told Mr. Gavin he “should have never come back to work” after his surgery, and repeatedly suggested he should “leave.”

EEOC Issues New National Origin Discrimination Guidelines

December 7, 2016 | by Jonathan I. Nirenberg

Last month, the United States Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).

While the Guidance is not legally binding, it explains the position of the Commissioner of the EEOC. Below is a brief overview of some of the most noteworthy topics it addresses:

Definition of National Origin

New Jersey Court Reinstates Employee’s Disability Discrimination Lawsuit

November 30, 2016 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division reversed a trial court’s decision that had dismissed Robert Benning’s disability discrimination lawsuit because the trial court improperly ignored evidence which supported his claim.

Mr. Benning is disabled. Specifically, he has cognitive impairment from an episode of cardiac arrest in 1984, which causes him difficulty with his short-term memory and processing new information.

In September 2006, Mr. Benning began working for the Middlesex Regional Education Services Commission (“Middlesex”). Although he initially served as a teacher’s aide, he quickly began to work as custodian. Between 2006 through 2009, he consistently received positive performance ratings.

Decision Based on Family Relationship is Not Ancestry Discrimination

November 21, 2016 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division recognized that New Jersey Law Against Discrimination (“LAD”)’s prohibition against ancestry discrimination does not prevent employers from discriminating against an individual because he is related to another employee.

In 2011, John Walsifer applied for one of two vacant positions as a police officer with the Borough of Belmar. Of the job applicants, Mr. Walsifer had the second highest score on the Civil Service test. Erik Lieb, a military veteran, was at the top of the Civil Service list. Michael Yee, who already worked for Belmar as a special police officer, was third on the list.

Belmar chose to hire Mr. Lieb and Mr. Yee and did not offer a job to Mr. Walsifer. It was required to give a preference to Mr. Lieb in the hiring process because of his veteran status. The Borough claimed it offered the position to Mr. Yee because of his experience as a special police officer, the related police training he had received, and the fact the he already was authorized to carry a service weapon.

Law Would Make it Illegal to Seek Job Candidate’s Salary History

October 18, 2016 | by Jonathan I. Nirenberg

A potential amendment to the New Jersey Law Against Discrimination (“LAD”) would make it illegal for employers to ask prospective employees about their wage and salary history before hiring them. The LAD is an anti-discrimination law that protects New Jersey employees from discrimination, harassment and related retaliation.

Introduced last month by Senators Nia H. Gill (Dem. Essex/Passaic) and Loretta Weinberg (Dem. Bergen), the bill would make it unlawful for an employer to reject or screen a job applicant based on his or her past salary or wages. More specifically, it would prohibit employers from having a minimum or maximum requirement for job applicants in terms of past salary, wages or benefits. It also would prohibit employers from relying on a job applicant’s previous compensation at any time during the hiring process, up to and including finalizing an employment contract or job offer.

In addition, the proposed amendment to the LAD would make it unlawful for an employer to inquire about a job candidate’s compensation and benefits history, either in writing or otherwise unless the candidate voluntarily provided the employer a written authorization to obtain his or her compensation or benefits history.

Employer Can’t Fire Employee for Mistake Caused by its Failure to Accommodate his Disability

September 29, 2016 | by Jonathan I. Nirenberg

A New Jersey court recently ruled that a jury must determine whether an employer committed disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) by firing an employee for making a mistake on a day on which he had asked to be on a medical leave.

Matthew Cook worked for Gregory Press, Inc. as a printing machine operator. In 2011, he began to experience neck pain, numbness and tingling in face, and tingling in his hands. He saw a doctor who recommended an MRI.

In the meantime, Mr. Cook’s home was flooded and severely damaged by Hurricane Irene. He took almost a week off from work to repair his home.

NJ Supreme Court Makes it Harder to Reduce Emotional Distress Damages

September 20, 2016 | by Jonathan I. Nirenberg

Yesterday, in an employment discrimination case, the New Jersey Supreme Court dramatically limited the right of courts to reduce the amount of a jury’s emotional distress damages award, ruling that courts can only do so in unusual cases.

The case was filed by two brothers, Ramon and Jeffrey Cuevas. The Cuevas brothers are Hispanic. Their employer, Wentworth Property Management Corporation, subjected them to derogatory and humiliating remarks relating to their race. It fired the brothers shortly after Jeffrey complained about the harassment.

After a trial, the jury awarded Ramon over $1 million in lost wages, $800,000 in emotional distress damages and $52,500 in punitive damages. It also awarded Jeffrey $150,000 in lost wages, $600,000 in emotional distress damages and $32,500 in punitive damages. Wentworth asked the trial court to remit (reduce) the emotional distress damages awards, arguing they were excessive.

Employee Hired When 60 Years Old Can Proceed with Age Discrimination Claim

August 17, 2016 | by Jonathan I. Nirenberg

Last month, New Jersey’s Appellate Division reversed a trial court’s ruling that had dismissed an employee’s age and disability discrimination case.

Spencer Robinson worked for Armadillo Automation, Inc., also known as Onyx Valve Co., in its assembly department. When Onyx hired Mr. Robinson, he was 60 years old. According to Mr. Robinson, when he was hired he made it clear he had a lower back condition and needed a stool so he could sit during the workday. Onyx provided him a stool.

Approximately six years later, Mr. Robinson experienced neck pain while he was working. He claims he reported his injury to the company’s vice president, who refused to send him the doctor and indicated he did not believe it was a workplace injury. Mr. Robinson further alleges the vice president told him he would not take him to the hospital unless he was “passed out on the floor or profusely bleeding.”