Gibbons Law Alert

Gibbons Law Alert

Gibbons Law Alert

Category: Discrimination

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...

Supreme Court Asked to Decide Prior Salary/Equal Pay Act Issue

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Posted in Discrimination

On May 26, 2020

The Fresno County Office of Education has requested the Supreme Court to hear an appeal from an en banc decision of the Ninth Circuit Court of Appeals holding that the Equal Pay Act (“the EPA”) prohibits an employer when setting the compensation of a female employee from considering her compensation at her prior job. If the Supreme Court agrees to hear the County’s appeal, it will be the second time the case will come before the Supreme Court. Previously, the Supreme Court vacated the Ninth Circuit’s decision because one of the appellate court judges who considered Fresno County’s appeal passed away, and was not replaced before the Ninth Circuit issued its opinion. Given that there is now a properly issued Ninth Circuit opinion, and given a split among the Courts of Appeals over whether and under what circumstances the EPA permits a new employer’s consideration of a woman’s prior salary when setting compensation, it seems likely that the Supreme Court will take up the case. Background After teaching middle school for a number of years, Aileen Rizo was hired by Fresno County as a math consultant. The county employed a twelve-level job classification system and each level was comprised of a ten-step salary schedule. In accordance with its standard operating procedures, the County determined Rizo’s...

New Jersey Supreme Court Allows Disability Discrimination Claim Brought by Medical Marijuana User Employee to Move Forward

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Posted in Discrimination

On April 16, 2020

Last month, New Jersey’s high court ruled in Wild v. Carriage Funeral Holdings, Inc. that an employee’s disability discrimination claim brought under the New Jersey Law Against Discrimination (LAD), arising from being terminated for his use of medical marijuana, was not barred by the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), and that he had sufficiently stated his claim to survive a motion to dismiss. Plaintiff, a funeral director, brought suit against defendant-employer/Carriage Funeral Holdings, Inc. (“Carriage”), and others, based on, among other things, allegations that defendants violated the LAD by terminating him due to his disability and failing to accommodate him, as a result of his lawful use of medical marijuana for treatment of his cancer, as permitted by the CUMMA and in accordance with his physician’s treatment plan. Defendants moved to dismiss plaintiff’s complaint, and the trial court granted the motion, with prejudice, finding plaintiff was lawfully terminated for violating Carriage’s drug use policy after a positive drug test, given to him by his employer after plaintiff’s car was struck by another vehicle while plaintiff was driving for work purposes. In reaching its decision, the trial court relied, in part, on the CUMMA’s declaration that employers are not required to accommodate medical marijuana use in the workplace. Plaintiff appealed, and the Appellate...

New Jersey Division on Civil Rights Issues Guidance on the Diane B. Allen Equal Pay Act

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Posted in Discrimination

On March 12, 2020

On March 2, 2020, the New Jersey Division on Civil Rights (“DCR”) issued a Guidance Memorandum on the Diane B. Allen Equal Pay Act (“the Act”), which took effect in July 2018 and is widely considered to be one of the most employee-protective equal pay laws in the nation. In a statement made on the day of the Guidance Memorandum’s (“guidelines”) release, New Jersey Governor Phil Murphy reaffirmed his administration’s intention to eliminate discriminatory pay practices throughout the State that have historically prevented women and other minority groups from earning equal pay. The guidelines include a legal overview, with specific attention paid to the Act’s changes to the New Jersey Law Against Discrimination (“LAD”), and provide answers to Frequently Asked Questions (“FAQs”). The first section of the guidelines offer an overview of the Act’s main provisions and provide details on how the Act modifies the LAD. As a refresher, the overview outlines the DCR’s position as to the five most important provisions of the Act: Expanded Remedies for Pay Discrimination: The Act amended the LAD to implement a six-year “lookback” period which allows employees who prove pay discrimination to recover up to six years of back pay if the discrimination was continuous and a violation occurred within the LAD’s two-year statute of limitations. The Act...

UPDATE: Mandatory Nondiscrimination Policies, Training and Reporting: Proposed New Jersey Legislation Would Impose New Obligations on Employers and Lengthen the Limitations Period

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Posted in Discrimination / Policies and Handbooks

On February 24, 2020

On February 18, 2020, Governor Phil Murphy continued his quest to enhance employee protections in New Jersey by announcing proposed legislation aimed at strengthening New Jersey’s already-expansive prohibitions against harassment and discrimination in the New Jersey Law Against Discrimination (NJLAD). According to the proposed legislative findings, the bill was designed to “reject the norms of yesterday that overlooked workplace harassment and discrimination as business as usual.” The proposed legislation comes on the heels of a report released by the New Jersey Division on Civil Rights (DCR) this month, Preventing and Eliminating Sexual Harassment in New Jersey, the result of a trio of public hearings held in September 2019. Employers are already scrambling to keep up with legislation directed at protecting call center employees, cracking down on misclassification, and expanding the rights of employees affected by a mass layoff or plant closing. Here are the highlights from the proposed legislation: Expanded Definition of Employee. Domestic workers and unpaid interns would be added to the definition of “employees” under the NJLAD and there are specific provisions governing domestic workers. Extended Time for Filing Claims. The current two-year statute of limitations applicable to claims brought under the NJLAD would be extended to three years. And, the time to file a complaint with the DCR would be extended from...

The Third Circuit Rules That Philadelphia’s Salary History Ban Is Constitutional

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Posted in Discrimination

On February 12, 2020

On February 6, 2020, the Third Circuit Court of Appeals ruled that a Philadelphia law that prohibits employers from asking job applicants about their salary history is constitutional, lifting the injunction the United States District Court for the Eastern District of Pennsylvania (“District Court”) imposed on certain provisions of the law. The legislation at issue, the Wage Equity Ordinance (“Ordinance” or “law”) aims to address the historic wage gaps that affect women and minorities by encouraging employers to base salary offers on prospective job responsibilities rather than an applicant’s prior wages. The Ordinance was signed into law by Philadelphia Mayor Jim Kenney in January 2017, and was set to take effect in May 2017. The law contains two key provisions: (1) the “inquiry provision,” which makes it unlawful for Philadelphia employers and employment agencies (collectively “employers”) to inquire into an applicant’s wage and benefit history; and (2) the “reliance provision,” which makes it unlawful for employers to rely on an applicant’s wage history to determine future wages. The law also prevents employers from retaliating against any candidate who does not respond to a wage inquiry. The law does not prohibit a prospective employee from voluntarily disclosing compensation history; nor, are employers prohibited from inquiring with respect to compensation expectations. In April 2017, before the law...

Governor Murphy Signs Bill Making Nondisclosure Provisions Unenforceable and Against Public Policy

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Posted in Discrimination / Employment Agreements / Restrictive Covenants

On March 19, 2019

On Monday, March 18, 2019, Governor Phil Murphy signed Senate Bill No. 121, which makes nondisclosure provisions in employment contracts or settlement agreements that are intended to conceal the details of claims of discrimination, retaliation, or harassment unenforceable and against public policy in New Jersey. Section 1 of the new law warns that a “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment” is against public policy and unenforceable.” The law does not define “employment contract” and leaves open to interpretation whether it applies to all agreements between employer and employee, whether an employment agreement, a separation agreement, or a settlement agreement. The prohibition on waiving any procedural right would make arbitration agreements, which by their nature waive the right to a jury trial, also invalid and unenforceable in contravention of the Federal Arbitration Act and recent United States Supreme Court precedent. An immediate challenge to this aspect of the law is likely since it casts doubt on all arbitration agreements between an employer and employee that seek to include claims of discrimination, harassment, and retaliation. Section 1 also prohibits a prospective waiver of any right or remedy under the New Jersey Law Against Discrimination (NJLAD) or any other statute or...

Third Circuit Overturns Summary Judgment Based on the Faragher-Ellerth Defense

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Posted in Discrimination

On August 1, 2018

Employers who are sued for sexual harassment committed by a supervisor may be able to avoid liability, even if harassment had, in fact, occurred, by asserting the so-called Faragher-Ellerth affirmative defense, named after the two United States Supreme Court cases that first recognized the defense. An employer may assert the Faragher-Ellerth defense to supervisor harassment when no tangible employment action has been taken against the harassed employee and the employer is able to demonstrate (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Recently, the United States Court of Appeals for the Third Circuit, in Minarsky v. Susquehanna County, addressed the requirements of the Faragher-Ellerth defense in the context of the assertion of a female employee that she acted reasonably in not taking advantage of the procedures made available by her employer to prevent or correct the harassment against her by her supervisor. In so doing, the Third Circuit reversed the district court’s grant of summary judgment to the employer based on the Faragher-Ellerth defense and held on the facts of the case a jury should decide the whether the defense applied. Background Sherri Minarsky worked as a part-time secretary at...

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