Gibbons Law Alert

Gibbons Law Alert

Category: Discrimination

U.S. Supreme Court Eliminates Heightened Standard for Reverse Discrimination Claims

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Posted in Discrimination

On June 18, 2025

On June 5, 2025, the U.S. Supreme Court issued a unanimous decision that places reverse discrimination claims on equal footing with traditional discrimination claims under federal law. Ames v. Ohio Department of Youth Services, 605 U.S. ___ (2025). The plaintiff, a heterosexual woman, claimed her employer denied her a promotion and demoted her on the basis of her sexual orientation. The Sixth Circuit dismissed her claims, finding she had failed to surpass the additional hurdle required in reverse discrimination claims to identify “background circumstances” demonstrating the Ohio Department of Youth Services was the “unusual employer” that discriminates against members of a majority group. The Supreme Court rejected the “background circumstances” test, which had been adopted by five lower Circuits, and held that majority-group members cannot be subject to a heightened burden of proof because the text of Title VII makes no such distinction. Now, federal judges and agencies can no longer assume that historically disadvantaged groups are more likely to be subject to discrimination in the workplace. Justice Ketanji Brown Jackson wrote: “By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.” The full decision is available here. Moving forward, we expect that...

Third Circuit Concludes a Job Applicant Cannot File a Discrimination Claim Under New Jersey’s Cannabis Law

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Posted in Discrimination

On December 23, 2024

In a 2-1 split decision issued on December 9, 2024, the Third Circuit held that employees do not have a private right of action under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), marking the first time a court has analyzed the statute’s employment protections since its passage nearly four years ago. Statutory Background In February 2021, New Jersey enacted CREAMMA, a voluminous law regulating the legal manufacturing, distribution, sale, and use of cannabis throughout the state. Among the sea of statutory provisions, CREAMMA prohibits employers from taking adverse employment action against: (1) a prospective or current employee based on the use or non-use of cannabis; or (2) a current employee based solely on a positive cannabis drug test. Yet, the law does not provide an express enforcement mechanism against employers who violate these provisions. In September 2022, the Executive Director of the New Jersey Cannabis Regulatory Commission (“the Commission”) issued some guidance to employers grappling with the implementation of CREAMMA’s anti-discrimination provisions. However, the guidance provided little in the way of practical information for employers struggling to implement CREAMMA in the workplace. The Third Circuit’s Decision in Zanetich In Zanetich v. Wal-Mart Stores E., Inc., No. 23-1996, 2024 U.S. App. LEXIS 31051 (3d Cir. Dec. 9, 2024), the plaintiff filed a two-count...

What Employers Should Know About Biden’s AI Executive Order

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Posted in Discrimination / Labor

On November 7, 2023

On October 30, 2023, President Biden issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). The sweeping Executive Order sets out standards for safe and secure uses of AI with an emphasis on privacy protections, the promotion of innovation and competition, avoiding discrimination and bias, and supporting workers. The Executive Order requires principles and best practices to be established by the Secretary of Labor within 180 days of the Executive Order. The principles and best practices will provide guidance for employers to “mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.” The principles and best practices must address the following, • job-displacement risks and career opportunities related to AI, including effects on job skills and evaluation of applicants and workers • labor standards and job quality, including issues related to the equity, protected activity, compensation, health, and safety implications of AI in the workplace • implications for workers of employers’ AI-related collection and use of data about them, including transparency, engagement, management, and activity protected under worker-protection laws Agencies will likely adopt the Secretary of Labor’s guidelines, as appropriate and consistent with applicable laws. We can also expect guidance on AI workforce development, as well as employee monitoring, which would ensure that workers whose...

New York City Pay Transparency: What Employers Need to Know

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Posted in Discrimination / Policies and Handbooks

On October 26, 2022

Effective November 1, 2022, covered employers in New York City must comply with new legislation concerning pay transparency. Specifically, the New York City Pay Transparency Law (“Pay Transparency Law” or “Law”) amends the New York City Human Rights Law (NYCHRL) by requiring employers to include minimum and maximum base salaries and wages for a position when advertising or posting a job, promotion, or transfer opportunity. We discuss the new law and guidance issued by the New York City Commission on Human Rights (“Commission”) below. New York City joins a number of other jurisdictions that have passed some form of a pay transparency law, including California, Colorado, Connecticut, Maryland, Nevada, Rhode Island, and Washington. Who Are “Covered Employers?” The Pay Transparency Law applies to all New York City employers with at least four employees (which includes owners and individual employers). For counting purposes, all four employees need not work in New York City or in the same location. Instead, a particular workplace is covered so long as one of the employees works in the city. Employment agencies are also covered by the Law regardless of size, but the Law excepts temporary help firms seeking applicants to join their pool of available workers. What the Pay Transparency Law Requires Any advertisement for a job, promotion, or transfer...

The New Jersey Cannabis Regulatory Commission Issues Much-Needed Interim Guidance on Managing Employees Working While Under the Influence of Cannabis Products

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Posted in Discrimination

On October 13, 2022

The enactment of the New Jersey Cannabis Regulatory Enforcement, Assistance, and Marketplace Modernization Act (CREAMMA), signed into law in February 2021, legalized the recreational use of marijuana for adults ages 21 and older in New Jersey. However, the right to marijuana use is not unfettered, and an employer’s right to maintain a drug-free workplace is often easier said than done where cannabis is concerned. Under CREAMMA, an employer cannot discharge or take any other adverse action against an employee because the employee uses cannabis items outside of the workplace. An employer may, however, require an employee to undergo a drug test: Upon reasonable suspicion of an employee’s use of a cannabis item while performing his or her work responsibilities, or Upon finding any observable signs of intoxication related to use of a cannabis item, or Following a work-related accident subject to investigation by an employer In this regard, CREAMMA directs the Cannabis Regulatory Commission (CRC), the entity tasked with crafting and enforcing rules and regulations governing the sale and use of cannabis in New Jersey, to prescribe regulations for issuing a Workplace Impairment Recognition Expert (WIRE) certification to full- or part-time employees or others contracted to provide services on behalf of an employer. Through education and training, a WIRE becomes certified in detecting and identifying...

The New Jersey Appellate Division Expands Hostile Environment Liability Under the LAD

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Posted in Discrimination

On June 14, 2022

On June 2, 2022, in Morris v. Rutgers-Newark University, the New Jersey Appellate Division decided, in a case of first impression, the extent to which a plaintiff alleging harassment in violation of the New Jersey Law Against Discrimination (“the LAD”) can use acts of harassment against others to establish the existence of a hostile environment. The case involved claims brought by members of the women’s basketball team of Rutgers-Newark University (“the University”), who were subjected to a hostile educational environment by the Interim Head Coach of the team. Although the case involved allegations of a hostile educational environment, the court’s decision is likely to be viewed equally applicable to hostile work environment claims and thus is one employers should be aware of. Background The plaintiffs included five players and the team manager for the University’s women’s basketball team for the 2014-2015 season, five of whom identified themselves as Black or African American while one identified as Hispanic. Four of the plaintiffs identified themselves as either lesbian, gay, or bisexual. In addition to the University, the defendants included the team’s Interim Head Coach for that season, the University’s Athletic Director, and the University’s Associate Provost. The plaintiffs brought suit in the Law Division of the Superior Court under the LAD alleging they were the victims of...

Meade v. Twp. of Livingston: Subordinate’s Indirect Influence Can Leave Employers Open to Liability Under the New Jersey Law Against Discrimination

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Posted in Discrimination

On January 25, 2022

On December 30, 2021, the Supreme Court of New Jersey reversed a grant of summary judgment in favor of an employer in a case involving an allegation that a subordinate’s discriminatory animus indirectly influenced an employment termination decision in violation of New Jersey’s Law Against Discrimination (LAD). In Meade v. Twp. of Livingston, the employee, a town manager, claimed that the town council decided to terminate her employment due to the gender bias of a male subordinate, the town police chief. Contrary to the trial court and appellate division, the Supreme Court concluded that there was a genuine dispute as to whether the police chief’s alleged bias influenced the town council’s decision, thereby rendering the case appropriate for a trial. In so ruling, the court noted that the matter was not a cat’s paw case (as argued by amicus curae National Employment Lawyers Association of New Jersey) because the town manager was not alleging the police chief influenced the town council to fire her, but that the town council’s decision simply was influenced by the police chief’s own purportedly discriminatory view of women. In coming to its decision, the court walked through the familiar McDonnell-Douglas burden shifting framework. It first explained that the town manager presented a prima facie case of employment discrimination: (1) the...

NJ Supreme Court Holds a Supervisor’s Use of Two Racial Slurs Was Enough to Send the Claims to a Jury

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Posted in Discrimination

On July 8, 2021

On June 16, 2021, the New Jersey Supreme Court ruled in Rios v. Meda Pharmaceutical, Inc., Tina Cheng-Avery, Glenn Gnirrep, et. al. that a supervisor’s use of two offensive slurs based on race/national origin and directed at a Hispanic employee was sufficiently “severe and pervasive” to establish a hostile work environment claim under the New Jersey Law Against Discrimination (“LAD”), survive summary judgment, and proceed to trial. In Rios, Meda Pharmaceutical, Inc. (“Meda” or “Company”), hired plaintiff, Armando Rios, Jr., a Hispanic male, as the Company’s Director of Brand Marketing, reporting to individual defendant Tina Cheng-Avery, the Senior Director of Commercial Operations (“supervisor”). Plaintiff alleged that his supervisor directed the term “Sp–” towards him while at work. More specifically, plaintiff claimed that a month after his hire in May 2015, he told his supervisor that he and his wife were searching for a new home, and, in response, she stated, “it must be hard for a Sp– to have to get FHA loans.” According to plaintiff, shortly after this comment was made, his supervisor allegedly stated to him that an actress who had been “auditioning” for a company commercial would be hired “if she didn’t look too Sp–ky.” (Chief Justice Rabner noted that the court had used “the offensive language in the record” as it...

New York State Enacts Law Providing Paid Time Off for COVID-19 Vaccination

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Posted in Discrimination / Employee Benefits / Policies and Handbooks

On March 25, 2021

Governor Andrew Cuomo recently signed legislation S2558A/A3354-B granting all public and private employees in New York paid leave to obtain a COVID-19 vaccine. The new legislation, which is effective as of March 12, 2021 and expires on December 31, 2022, amends the New York Civil Service Law (with respect to public employees), along with the New York Labor Law, and provides public and private employees with up to four hours of paid leave per vaccine injection. In connection with this legislation, the New York Labor Law was amended to add Section 196-c, which provides that: New York employees must receive paid COVID-19 vaccine leave of up to four hours per vaccine injection. Thus, employees receiving a two-injection COVID-19 vaccine (such as those currently offered by Pfizer and Moderna) will receive up to eight hours of paid leave to obtain the vaccine. The “four hour” maximum does not apply to an employee subject to a collective bargaining agreement (CBA) providing a greater number of hours of leave to obtain the vaccine or where an employer authorizes additional time off for employees to receive the vaccine. The leave must be paid at an employee’s regular rate of pay. The leave cannot be charged against “any other” employee leave. Accordingly, employers cannot require employees to use other available...

EEOC Injects Guidance on COVID-19 Vaccine Practices in the Workplace

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Posted in Disability / Discrimination / Policies and Handbooks

On December 23, 2020

In the wake of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer and Moderna COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) addressed a question weighing heavily on the minds of businesses and their employees: can an employer require its employees to get vaccinated? The EEOC’s December 16, 2020 guidance answered that question in the affirmative, but, as with most pronouncements during the pandemic, the issue is far from simple, and employers must pay close attention to what the guidance says, and what it does not say, when crafting their COVID-19 vaccination policies. The EEOC Guidance characterizes an employer-mandated vaccine as an Americans with Disabilities Act (ADA)-permitted, safety-based qualification standard, akin to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers can require employees to get a COVID-19 vaccine, but must allow for exceptions where employees are unable to receive the vaccine because of either disabilities or sincerely held religious beliefs. Employees with Disabilities: Where a mandatory vaccination policy would screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat in the workplace due to a “significant risk of substantial harm to the health or safety of the individual or...

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