Americans with Disabilities Act ("ADA")

Court Reinstates Lawsuit Alleging Employer Searched Cellphone to Seek Justification to Fire Employee

January 10, 2023 | by Jonathan I. Nirenberg

A recent decision by the Third Circuit Court of Appeals allows an employee to proceed with his retaliation claim based on evidence suggesting his employer’s decision to search his cellphone was an excuse to try to find support to fire him in retaliation for asserting claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”) and the Family & Medical Leave Act (“FMLA”).

Joseph Canada is Black and suffers from serious back problems including herniated discs and arthritis. He worked for Samuel Grossi and Sons, Inc. for 10 years. Mr. Canada claims Grossi’s management prevented him from accessing FMLA leave forms, and harassed him when he tried to take time off for his back issues. He eventually obtained the forms on his own, and took FMLA leave.

In March 2019, Grossi had a temporary layoff during which it laid off Mr. Canada for a day. In response, Mr. Canada filed a claim of race and disability discrimination with the United States Equal Opportunity Commission (“EEOC”). In June 2019, Mr. Canada filed a discrimination and retaliation lawsuit against Grossi under Title VII, the ADA and the FMLA.

When Can an Employer Require a Fitness for Duty Exam?

May 16, 2022 | by Jonathan I. Nirenberg

As a New Jersey employment lawyer, I have had numerous clients tell me their employer has asked or required them to undergo a fitness-for-duty examination. However, anti-discrimination laws limit when an employer has the right to send an employee to a medical exam.

Protection Under Anti-Discrimination Laws

The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) both prohibit employers from sending employees for a fitness-for-duty exam unless the exam is “job-related” and “consistent with business necessity.”

Requiring Employee to Seek Another Job is an Adverse Employment Action

March 13, 2022 | by Jonathan I. Nirenberg

A recent case recognizes that an employer’s decision to remove an employee from her job and give her an opportunity to search for another position within the company is an adverse employment action. In other words, if it is done for a discriminatory reason, doing so can violate the New Jersey Law Against Discrimination (“LAD”).

Kathleen Fowler, who has epilepsy and is a cancer survivor, worked for AT&T for 30 years and is over 60 years old. In December 2015, AT&T announced a plan to reduce the Technology Planning and Engineering business unit for which Ms. Fowler worked by eliminating numerous positions. AT&T placed the employees impacted by this reduction in force on “surplus status,” meaning they were given the choice to accept a severance package and leave the company, or remain employed for 60 days to search for another job within AT&T. If an employee on surplus status was not offered another position within those 60 days, then she would receive the severance benefits.

Ms. Fowler elected to go onto surplus status. During that period, she was offered two positions, one in New Jersey and the other in Texas. Even though she was better qualified for the position in Texas, Ms. Fowler accepted the job as a senior system engineer because it was in New Jersey and she did not want to interrupt her cancer treatment.