Discrimination

Treating Physician Can Testify About Employee’s Disability

August 1, 2016 | by Jonathan I. Nirenberg

Earlier this year, the New Jersey Supreme Court ruled that in an employment discrimination lawsuit the employee’s treating physician can offer medical opinions relating to the medical treatment without having to be designated an expert witness.

Patricia Delvecchio worked for the Township of Bridgewater as a police dispatcher. Ms. Delvecchio suffers from irritable bowel syndrome (“IBS”). She claims her IBS is a disability which Bridgewater failed to accommodate, in violation of the New Jersey Law Against Discrimination (“LAD”). Specifically, she asked the department not to require her to work the night shift because doing so exacerbated her IBS. The town refused, claiming doing so would impose an undue hardship since it would have to require other dispatchers to work the night shift more frequently. Bridgewater also denied Ms. Delvecchio’s requests to take an extended sick leave.

Eventually, the Township asked Ms. Delvecchio to resign. Ms. Delvecchio refused, and instead accepted a job as a records clerk, a position with a lower salary than her previous job as a police dispatcher. Ultimately, Bridgewater fired Ms. Delvecchio for “neglect of duty” and “chronic/excessive absenteeism” because she had exceeded her allotment of sick leave.

Employers Can’t Fire Employees Based on Stereotypes About Divorce

July 1, 2016 | by Jonathan I. Nirenberg

Last week, the New Jersey Supreme Court concluded that the New Jersey Law Against Discrimination (“LAD”), which includes a prohibition against marital status discrimination, not only makes it unlawful for employers to discriminate against employee because they are married or single but also because they are separated, engaged, or seeking a divorce.

Robert Smith worked for the Millville Rescue Squad for 17 years, most recently as its Director of Operations. Mr. Smith’s wife, Mary Smith, also worked for the Squad. In 2005, Mr. Smith had an affair with one of his subordinates. When Mrs. Smith learned about her husband’s affair, she reported it to his immediate supervisor, John Redden.

In early 2006, Mr. Smith moved out of his home and told Mr. Redden that his marriage had collapsed. On February 16, 2006, Mr. Smith told Mr. Redden he did not think there was any chance he would reconcile with his wife. In response, Mr. Redden indicated that he expected it would be an “ugly divorce.” Mr. Redden also told Mr. Smith he had previously discussed the issue with the Squad’s Board of Directors, but would not have done so if he believed there was any chance Mr. Smith would reconcile with his wife. Mr. Redden fired Mr. Smith the next day.

Court Rejects Testimony of Undisclosed Witnesses in Religious Accommodation Lawsuit

March 16, 2016 | by Jonathan I. Nirenberg

A recent ruling by the United States District Court for the District of New Jersey underscores the importance of disclosing potential witnesses to your opposing party during the discovery process of a lawsuit.

The case was filed by Matthew Webster, an individual whom Dollar General hired to be its store manager in a new location in Sicklerville, New Jersey. Mr. Webster is a Seventh Day Adventist. He asked Dollar General to allow him not to work on Saturday because his religious beliefs prevent him from doing so. The employer denied his request claiming it would have imposed an undue burden on its ability to operate the Sicklerville store. Among other things, Dollar General contends that doing so would leave the store without sufficient and capable leadership on the “busiest sales day” of the week and would require other key personnel to work longer and more frequent shifts.

Ultimately, Dollar General fired Mr. Webster because he would not work on Saturdays. Mr. Webster sued, alleging Dollar General and two of its employees, Bob Miller and Vince Triboletti, denied him a reasonable accommodation for his religious beliefs and otherwise discriminated against him because of his religion in violation of the New Jersey Law Against Discrimination (“LAD”).

Hispanic is a “Race” Under Federal Anti-Discrimination Laws

February 23, 2016 | by Jonathan I. Nirenberg

Earlier this month, the United States Court of Appeals for the Second Circuit recently recognized that “Hispanic” is a race for purposes of two federal anti-discrimination laws.

The case involved Police Lieutenant Christopher Barrella, a white Italian-American. Lt. Barrella works for the Village of Freeport, New York. When there was a vacancy for chief of police, Lt. Barrella and 5 other lieutenants took the relevant civil service test. Although Lt. Barrella scored highest on the test, Mayor Andrew Hardwick chose to promote another candidate, Lieutenant Miguel Bermudez.

Lt. Barrella sued Freeport and Mayor Hardwick, claiming they discriminated against him because of his race (non-Hispanic) in violation of the New York State Human Rights Law (“NYSHRL”) and two federal laws, Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. He claims Mayor Hardwick, who is African American, promoted Lt. Bermudez, who was born in Cuba, because he is Hispanic.

Employers Need Sufficient Basis to Require Fitness for Duty Exam

February 8, 2016 | by Jonathan I. Nirenberg

A recent ruling by New Jersey’s Appellate Division demonstrates that an employer can commit disability discrimination in violation of the Americans with Disabilities Act (“ADA”) if it requires an employee to attend a psychiatric fitness for duty exam without a sufficient basis to do so.

Paul Williams worked for the Township of Lakewood, New Jersey as a truck driver for the Department of Public Works (“DPW”). In March 2013, Lakewood received an anonymous letter which claimed Mr. Williams’s coworkers “dread” working with him and “everyone knows he has some sort of mental issues” that lead to daily “tirades and outbursts.” The letter asked Lakewood to get Mr. Williams help, and to take steps to ensure the safety of his coworkers.

Lakewood waited more than eight months before it did anything in response to the letter. In December 2013, it ordered Mr. Williams to attend a psychological fitness for duty examination, and warned him he would be subject to discipline if he failed to attend. Mr. Williams refused to attend the exam, claiming it violated his rights under the ADA. True to its warning, Lakewood fired Mr. Williams.

Employee Entitled to Evidence of Employer’s Past Discrimination Based on Different Protected Categories

February 1, 2016 | by Jonathan I. Nirenberg

Recently, the New Jersey Appellate Division ruled that an employee who brought a discrimination lawsuit is entitled to obtain evidence about the facts of another employment discrimination lawsuit against one of the individuals he claims discriminated against him. The Court reached this conclusion even though the alleged discrimination in the previous case was based on completely different legally-protected categories.

Harold Hansen brought a discrimination lawsuit against his former employer, Rite Aid Corporation, and its Loss Prevention Manager, Craig Mauriello, among others. Rite Aid fired Mr. Hansen in May 2008. Although the company did not give Mr. Hansen any explanation when it fired him, it subsequently claimed it fired him because he violated company policy by failing to report to management that several other store employees had reported to him that they believed the daughter of another employee was shoplifting from the store.

In his lawsuit, Mr. Hansen claims the decision to fire him was based on his age, gender and sexual orientation in violation of the New Jersey Law Against Discrimination (“LAD”).

Inaccurate Job Description Foils Termination Based on Failed Fitness for Duty Exam

January 7, 2016 | by Jonathan I. Nirenberg

Earlier today, New Jersey’s Appellate Division ruled that an employee is entitled to a trial to determine whether her employer fired her because it incorrectly perceived she was unable to perform her job due to an actual or perceived disability, obesity. The case largely turns on whether the employer’s physician relied on an accurate description of the physical requirements of her job.

Barbara Sheridan worked as a custodian for the Egg Harbor Township Board of Education. Egg Harbor was concerned whether Ms. Sheridan could perform her job based on the fact that she was short of breath and her face was flushed after she performed certain more strenuous job duties. The school district also was concerned that Ms. Sheridan was unable to climb ladders, had trouble climbing stairs, and was a risk that she would injure herself or otherwise performing her job duties.

The school district sent Ms. Sheridan for a fitness for duty exam with an independent physician, who concluded she physically was incapable of performing all of her job duties. Relying on those conclusions, the school board fired Ms. Sheridan.

Worker Hired Through Temporary Agency Protected by Title VII

December 14, 2015 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently recognized that an employee can bring a lawsuit under Title VII against the company where he works, even though he was hired and paid through a staffing firm. Title VII is a federal anti-discrimination law that prohibits employment discrimination based on gender, race, national origin, and religion.

Matthew Faush was an employee of Labor Ready, a staffing firm. Labor Ready assigned Mr. Faush to work at Tuesday Morning, Inc., a retail business, at one of its stores. His job was to set up display shelves, unload and stock merchandise, remove garbage, and perform other similar tasks. Mr. Faush, who is African-American, claims Tuesday Morning made a racially-motivated accusation that he stole merchandise, subjected him to racial slurs, and fired him because of his race.

Mr. Faush filed a lawsuit against Tuesday Morning, claiming it discriminated against him because of his race in violation of Title VII. The District Court granted summary judgment to Tuesday Morning, finding Mr. Faush was not an employee of the store. Unlike the New Jersey Law Against Discrimination, Title VII protects only employees and not independent contractors.

The Power of Direct Evidence of Discrimination

November 24, 2015 | by Jonathan I. Nirenberg

In my previous article, Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation, I discussed a case which addresses an employee’s right to a reasonable accommodation for a disability. The same case also demonstrates the power of direct evidence of discrimination.

Direct evidence is evidence that directly reflects the employer’s discriminatory motive. For example, it can include a statement by the employer that it fired the employee for a discriminatory reason.

Ordinarily, at a trial the employee has the ultimate burden to prove that a discriminatory factor such as age, race, gender or disability made a difference in the employer’s decision to fire her. However, if the employee can present direct evidence of discrimination, then the employer has the burden to prove it did not discriminate against her.

Jury to Decide Whether Nurse’s Disability Prevented Her From Working

October 22, 2015 | by Jonathan I. Nirenberg

The New Jersey Appellate Division Court recently considered the standard for discharging an employee based on a “perceived disability,” and in so doing reversed a grant of summary judgment to the defendant. In Grande v. Saint Clare’s Health System, the Court applied the standard established in 1998 in Jansen v. Food Circus Supermarkets, Inc., which provides that in evaluating whether an employee can remain in a position despite having a disability, the standard is “whether the handicapped person can do his or her work without posing a serious threat of injury to the health and safety of himself or herself or other employees.” This “requires the employer to conclude with a reasonable degree of certainty that the handicap would probably cause such an injury” before it can fire an employee. According to the Court, in determining whether the employee “poses a materially enhanced risk of serious injury . . . [p]robability, not mere possibility, is key.”

In this case, the plaintiff, Marianne Grande, worked as a nurse for the defendant employer, St. Clare’s Health System, for approximately ten years. During her last three years of employment, she suffered three injuries at work, two injuries to her shoulder and one to her back. Following her back injury, she took family and medical leave followed by personal leave. While on leave, the plaintiff’s physician cleared her to return to work full time without any restrictions. Despite such clearance, the defendant required her to participate in a “functional capacity evaluation test,” to assess her ability to, for example, lift certain objects and move in certain ways. In her role as a nurse, she worked with stroke victims and sometimes was required to move patients.

When the evaluation was completed, it provided for some restrictions. At this time, the plaintiff’s doctor allowed her to return to work in accordance with the restrictions set forth in the hospital’s evaluation. That same day, however, the hospital discharged the plaintiff indicating it could not accommodate her disability given the restrictions set forth in the evaluation. Approximately one month after her discharge, the plaintiff’s doctor cleared her to return to work, again without restrictions. Notwithstanding such clearance, the hospital declined to rehire her.