New Jersey Employment Lawyer Blog

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.

Independent Contractors Protected by Conscientious Employee Protection Act

July 10, 2008 | by Jonathan I. Nirenberg

On July 25, 2007, the New Jersey Supreme Court decided two employment law cases that clarified that the Conscientious Employee Protection Act (“CEPA”) applies to many individuals who have traditionally been considered independent contractors: D’Annunzio v. Prudential Insurance Company of America, 192 N.J. 110 (2007) and Stomel v. City of Camden, 192 N.J. 137 (2007). CEPA, which is often referred to as a whistleblower law, is a New Jersey statute that prohibits employers from retaliating against employees who object or refuse to participate in activities that they reasonably believe are illegal, fraudulent, criminal, or violate a clear mandate of New Jersey’s public policy relating to public health, safety or welfare.

In D’Annunzio, the New Jersey Supreme Court adopted a test that the Appellate Division established to determine whether an individual is an “employee” for purposes of another employment law statute, the New Jersey Law Against Discrimination. Those factors are: 1. the employer’s right to control the means and manner of the worker’s performance; 2. the kind of occupation-supervised or unsupervised; 3. skill; 4. who furnishes the equipment and workplace; 5. the length of time in which the individual has worked; 6. the method of payment; 7. the manner of termination of the work relationship; 8. whether there is annual leave; 9. whether the work is an integral part of the business of the “employer;” 10. whether the worker accrues retirement benefits; 11. whether the “employer” pays social security taxes; and 12. the intention of the parties.

D’Annunzio holds that Courts should primarily focus on three of those factors: 1. the degree of employer control; 2. the worker’s economic dependence on the relationship; and 3. whether the work is an integral part of the business. In its opinion, the Court notes that an individual is more likely to be considered an employee if he/she is a “cog” in the employer’s business, his/her work is continuously required by the employer’s business, his/her services are regularly at the employer’s disposal, or he/she performs routine or administrative activities.

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.