New Jersey Employment Lawyer Blog

The U.S. Senate is now considering a bill which will amend the Americans with Disabilities Act ("ADA"). The bill, which passed the U.S. House of Representatives last Wednesday, is designed to make the ADA applicable to more employees. Over the past decade, federal courts, including the Supreme Court, have narrowed the definition of disability to exclude persons whose disabilities are mitigated by treatments including prescription drugs, hearing aids and artificial limbs. The new bill, entitled the ADA Amendments Act of 2008, explicitly rejects this narrow definition. Under the proposed law, a person will be qualified as "disabled" under the ADA without regard to whether the disability is treatable, treated, or in remission.

The New York Times has reported that the Senate bill has bipartisan support, as well as tentative support from the President. A vote on the legislation should take place in the near future, according to Senate Democrat Tom Harkin.

As an employment litigator familiar with prosecuting cases of disability discrimination, I believe the ADA Amendments Act is necessary. I have advised many clients to avoid federal court if they have a disability discrimination claim. Instead, I bring my disability discrimination cases only in New Jersey state court, under the New Jersey Law Against Discrimination. Unfortunately, however, in my experience, the restrictive definition of "disability" that has been read into the ADA by the federal bench has creeped into our State courts as well. The ADA amendments will right the ship and make it easier for New Jersey employees and employers to work together to end disability discrimination.

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Posted In: Discrimination and Harassment

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Rep. Rob Andrews, D-N.J., held a hearing on transgender discrimination yesterday in the Capitol, winning praise from gay, lesbian, bisexual, and transgender communities. This was the first ever congressional hearing on transgender rights. Rep. Andrews called the hearing as Chairman of the Health, Education, Labor, and Pensions (HELP) subcommittee of the Committee on Education and Labor. Rep. Andrews, who is not seeking reelection to his congressional seat, defended his decision to conduct the hearing by stating that "Congress has a responsibility to protect all Americans from unfair discrimination."

Rep. Andrews called several witnesses who had personally experienced transgender discrimination, including retired Colonel Diane Schoroer. Ms. Schorer testified that a job offer as a terrorism analyst was quickly rescinded after she revealed to the Library of Congress that she was a transgender person. Ms. Schoroer retired from the military after a distinguished career as David Schoroer. Ms. Schorer's story is below.

Additional witness testimony can be found at the National Center for Transgender Equality website.

Kudos to Rep. Andrews for understanding that discrimination against any minority, no matter how small or misunderstood, is discrimination against everyone.

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Posted In: Discrimination and Harassment

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William Wallace, former Senior Associate Dean for Academic and Student Affairs for the University of Medicine and Dentistry of New Jersey, has filed a lawsuit against the University claiming he was fired in June 2006 for exposing racist hiring practices. Mr. Wallace was terminated by the University after federal monitor Judge Herbert Stern determined that Mr. Wallace abused his position as second in command at UMDNJ's School of Osteopathic Medicine in Stratford in myriad ways, including getting subordinates to submit expenses for him, devoting a "significant" amount of university time and resources to his political jobs, and giving a no-bid catering contract to a friend in exchange for free meals. The monitor also concluded that Mr. Wallace used his influence to try to get his daughter into medical school without the required essays or test.

I find it noteworthy that Mr. Wallace waited until the very end of his two year statute of limitations to bring this case. To me, that means he had a very hard time finding an attorney who would take his case. If you have a hard time finding an attorney to take your case, it generally means you don't have a good case.

I cannot personally comment on the merits of Mr. Wallace's claims; however, I can vouch for the thoroughness and precision of the Federal Monitor's team of investigators and attorneys. If they say you're guilty, you're guilty. I will also say that frivolous discrimination lawsuits not only waste taxpayer money, but hurt the real victims of discrimination and retaliation, who juries paint with the same brush as the fakers. Perhaps Mr. Wallace should have left well enough alone.

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Posted In: Discrimination and Harassment , Food for Thought , Whistleblower Retaliation

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The U.S. Department of Education is widening an investigation into whether Princeton University is discriminating against Asian applicants by artificially capping the number of students of Asian background it admits each year. The investigation was sparked by a 2006 lawsuit filed by Jian Li, a Chinese immigrant who grew up in Livingston, NJ, who was rejected for admission into Princeton's class of 2010 although he had perfect SAT scores, was in the top 1 percent of his high school class, and had significant extracurricular activities. The DOE is examining Princeton's admissions data for the class of 2010 to determine whether Asians have been discriminated against. The University denies any discrimination, stating that 14% of its freshman class last year was Asian.

Mr. Li, who was also rejected at Harvard, Stanford, MIT and U. Penn, told the Yale Daily News that his case is based on a study of admissions processes published by three Princeton researchers in 2004, "which found that while elite universities gave African-American applicants an advantage equivalent to 230 extra SAT points and Hispanic applicants 185 points while making admissions decisions, the schools placed Asian-Americans at a disadvantage equal to a loss of 50 SAT points." This phenomenon has been labeled "disaffirmative action." The researchers concluded that if colleges stopped using affirmative action quotas in admitting students, Asian students would fill nearly four out of every five places that are currently taken by black or Hispanic students.

The jury is still out on whether affirmative action policies in our colleges and universities are having a desirable effect. Are quotas an effective tool in ending racism, or are they just another form of racism? I guess it depends on who you speak to, a fact which speaks volumes.

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Posted In: Discrimination and Harassment

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NELA colleague Neil Mullin, Esq. won a significant victory for a gay couple who claimed they were harassed and discriminated against by firefighters in the Town of Secaucus, NJ. The plaintiffs alleged that they were subjected to anti-gay epithets and death threats after they asked the firefighters, whose station house was next to their residence, to quiet down. The plaintiffs alleged that the Town promoted two of the individuals involved, instead of disciplining them. The jury ruled in favor of the couple, concluding that Secaucus was responsible for the actions of the firefighters who perpetuated the attack, and that town officials had been indifferent to the harassment and discrimination the men experienced.

Mr. Mullin told The Hudson Reporter that he hoped the verdict "will signal to the Town of Secaucus the need to make some major changes. The mayor, the town attorney, and administrator failed to take any significant action to protect these men when their lives were in danger."

Having litigated against municipalities myself, I know that these cases are complicated and highly adversarial. My heartfelt congratulations to a terrific attorney and his team, and to the two gentlemen who prevailed in this case.

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Posted In: Civil Rights Violations , Discrimination and Harassment

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The Equal Employment Opportunity Commission obtained a $2.2 million settlement today from the landmark New York City restaurant, Tavern on the Green. The EEOC's lawsuit, filed in September 2007, alleged that the restaurant engaged in sexual harassment, racial discrimination, and retaliation against workers who complained about these unlawful conditions. At the time the lawsuit was filed, Tavern on the Green's attorney told the press that "the restaurant conducted a thorough investigation of the allegations when they were first made some time ago and found them "entirely devoid of merit.'" That must have been some great "investigation," huh?

Congratulations to the EEOC for its significant victory. And a big "boo" to Tavern on the Green for harassing, discriminating against, and retaliating against its employees . . . and then claiming that the victims of this conduct were lying. I hope this major settlement sends a message to other corporate wrongdoers that they cannot hide their heads in the sand when their managers and supervisors harass, discriminate, and retaliate against their subordinates. Wake up and smell the litigation.

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Posted In: Discrimination and Harassment , Whistleblower Retaliation

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In my experience, most people who sue their employers for discrimination or retaliation are not looking for money. They are looking for justice. They want a wrong to be righted. They want an admission of guilt from the employer, an acknowledgment that it messed up. In short, they want an apology. Unfortunately, an apology is the one thing my clients never get. They might get some money. They might get some self-respect back and some vindication. But those three little words they want to hear so badly -- "I am sorry" -- will never, ever come. And that's a shame.

So-called "apology laws" are on the books in 34 states in the medical malpractice area. Under these laws, apologies made by health professionals to injured patients are not admissible in court. This encourages doctors, who are only human after all, to own up to their mistakes and apologize without having a plaintiff's attorney ram it down their throat at trial. The New York Times reported yesterday that hospitals which have adopted this approach have seen their medical malpractice lawsuits diminish substantially. http://www.nytimes.com/2008/05/18/us/18apology.html?pagewanted=1&_r=2&hp

This approach would work quite well in employment discrimination and retaliation cases. I recently resolved a whistleblower case largely because the employer owned up and admitted it made a mistake. I was stunned. My client was satisfied. The case got settled. I know a lot of my cases would go the same way if the employers did the right thing and acknowledged their wrongdoing.

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Posted In: Civil Rights Violations , Discrimination and Harassment , Food for Thought , Whistleblower Retaliation

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The U.S. Senate has finally acted on the Genetic Information Nondiscrimination Act of 2007 by approving it with a vote of 95-0. This bill had passed the House of Representatives by a vote of 420-3 last year but languished in the Senate. President Bush supports the bill, and has said that he will sign it. This legislation is long overdue; similar bills to ban discrimination against persons with genetic disorders have been in Congress for the last 13 years.

The bill will bring welcome relief to people who suffer from debilitating genetic disorders, such as Tay-Sachs disease and Cystic Fibrosis, and who have experienced discrimination either from their employers, potential employers, or health insurers. The bill prohibits employers from using genetic information in hiring, firing, pay or promotion decisions. It bars health insurers from requiring clients to submit to genetic testing, and also from rejecting coverage or raising premiums for healthy people based on an inherited genetic predisposition to develop a particular condition.

As I wrote in my April 18, 2008 blog post, the purpose of this law and its New Jersey counterpart is to encourage Americans to take advantage of genetic testing as part of their medical care and protect them from employers who would "screen" them out of jobs based on stereotypes or other false assumptions about genetic disorders. These are laudable, common sense goals and I congratulate the many people and organizations who stood behind this bill and supported it all these years.

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Posted In: Discrimination and Harassment

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The Lilly Ledbetter Fair Pay Act, a bill which would have allowed employees who suffer discrimination in their pay checks to sue within six months of the last discriminatory paycheck received, has died in the Senate last evening. Republicans, with the support of President Bush and the Chamber of Commerce, led the effort against the measure, which failed to reach cloture by four votes.

The Act would have overturned a horribly decided 2007 Supreme Court opinion which held that an employee must bring a separate pay discrimination claim within six months of each discriminatory paycheck, even if the employee does not find out about the pay disparity for years. That is exactly what happened to Lilly Ledbetter, an employee of Goodyear who suffered pay disparity unbeknownst to her for many years. When she found out that her similarly-qualified male peers were making tens of thousands of dollars more per year for the same work, she brought an EEOC Charge of Discrimination. A jury trial followed, and Ms. Ledbetter won a substantial verdict. Goodyear appealed, arguing, in essence, that Ms. Ledbetter had the obligation to file a new EEOC Charge every time she got a bad paycheck. The Supreme Court, in an opinion written by New Jersey's own Justice Samuel Alito, agreed with this twisted logic.

Ms. Ledbetter describes the scene best:

The Ledbetter Fair Pay Act would have addressed this inequity by making the law clear that employees do not have to file multiple claims or preemptive claims if they suspect they are being discriminated against in their rate of pay. This is common sense legislation that must be passed at the next possible opportunity.

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Posted In: Discrimination and Harassment

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Most, if not all, employees experience unfair treatment at work at some time or another. Unfair treatment can include being passed over for a promotion or better opportunity because of nepotism, favoritism, or office politics. It can include a boss who is a bully and yells and screams at you for no reason. It can include being falsely accused of breaking office policy or work rules, or even committing a crime! By this point in my career, I've pretty much heard it all. Nothing surprises me when it comes to what goes on in New Jersey workplaces.

Unfortunately, as I have told countless employees over the years, there is no law against "unfair treatment" in the workplace. New Jersey, like every other state, is an "at will" employment state. "At will" employment means that your employer can take any action it wants towards you for any reason or no reason at all. You can be disciplined, demoted, transferred, "harassed" in the generic sense, or terminated at any time. On the plus side, you can quit your employment at any time, for any reason or no reason at all.

In certain cases, employers cross the line into unlawful conduct, which includes discrimination on the basis of age, gender, race, nationality, disability, sexual orientation, and the like. Unlawful conduct also includes retaliation against whistleblowers and employees who receive statutory benefits, such as FMLA leave. Actionable conduct can also include fraud, misrepresentation, breach of contract, defamation, and intentional infliction of emotional distress.

Before you contact an employment attorney for advice, consider whether the treatment you have suffered at work is due to unfairness or unlawful conduct. If the former, consider whether you can do anything to fix the situation "in house." I give some strategies for dealing with unfair treatment in a previous post. If the latter, do not hesitate to engage a competent, knowledgable employment attorney who can lay out your legal options and help you decide what steps to take. In either case, feel free to contact my firm for a free telephone consultation. We can quickly diagnose your situation and will let you know how we can help.

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Posted In: Discrimination and Harassment , Severance Negotiations

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The prevention of genetic diseases affecting the Jewish population was the topic of a recent symposium held in Philadelphia, PA. The good news is that genetic testing for deadly and disabling diseases such as Tay-Sachs and Cystic Fibrosis has improved substantially in the last several years, as have efforts by religious and community leaders to raise the awareness of Jewish couples who are at risk of passing on the genes for these disorders to their children. The bad news is that the law has lagged behind the science in this area. Federal legislation which would prevent discrimination on the basis of genetic information has stalled in the United States Senate. The bill, entitled the Genetic Information Nondiscrimination Act of 2007, passed the House of Representatives by a vote of 420-3 last year. President Bush also supports the bill. It appears to have strong bipartisan support. So what's the hold up?

Here in New Jersey, our Law Against Discrimination prohibits employment discrimination on the basis of genetic information, or on the basis of an employee's refusal to submit to a genetic test, or on an employee's refusal to make available the results of a genetic test to an employer. Federal genetic nondiscrimination law would make similar prohibitions mandatory in all fifty states. The purpose of these laws is to encourage Americans to take advantage of genetic testing as part of their medical care and protect them from employers who would "screen" them out of jobs based on stereotypes or other false assumptions about genetic disorders. Does anyone have a problem with these goals? Please urge your U.S. Senator to act on the Genetic Information Nondiscrimination Act of 2007.

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Posted In: Discrimination and Harassment

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Some bloggers and other opinion writers have suggested that a candidate's age should be a factor in choosing our next President. Some have even advocated that the Constitution of the United States of America be amended to place an upper age limit of 60 for candidates seeking election to the presidency. I think these people are dead wrong. Age discrimination should never, in my opinion, bar someone from a job, even a job as important as the President of the United States. Each candidate for president, and each job seeker generally, should be judged individually on his or her merits, i.e., intellect, character, and leadership ability. Otherwise, aren't we turning the Age Discrimination in Employment Act and New Jersey Law Against Discrimination on its head?

Granted, there are exceptions carved out of the anti-discrimination statutes for certain jobs which have specified age range as a bona fide occupational qualification. But the presidency is not a job which fits into these categories. As long as a candidate is qualified to run for office, his or her age should not be a factor.

I have too many clients over the age of 55 who come to me after being terminated and cannot find replacement employment. The companies that refuse to hire my clients or do business with them are violating the law if age is a factor in their decisions. What kind of message would it send to corporate America if we bar otherwise qualified candidates from running for president simply because of their age?

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Posted In: Discrimination and Harassment

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State Senator Raymond Lesniak wrote an eloquent op-ed piece on April 3, 2008 regarding the Polish goverment's decision to refuse to ratify the Lisbon Treaty, an EU document which prohibits discrimination on the basis of sexual orientation. According to the article, "Poland's President linked the marriage of a gay couple living in New York City with Polish anxieties about German occupation," a comparison which Sen. Lesniak called "bizarre and shameful."

Sen. Lesniak, who represents the 20th Legislative District, consisting of the City of Elizabeth and neighboring Union County communities, is proud of his Polish heritage. Some time ago, he protested a racial slur against Polish people by a local radio station. Garden State Equality, a gay rights advocacy group, joined and supported his protest.

Sen. Lesniak stated, quite correctly in my view, that "discrimination on the basis of sexual orientation has no basis to exist anywhere, let alone in Poland which has encountered discrimination countless times at the hands of neighboring countries and alliances."

I applaud this New Jersey politician who clearly "gets it" when it comes to the critical issue of eradicating discrimination in all its forms, and especially discrimination which is condoned, and therefore tacitly sponsored, by the state. Good job, Senator!

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Posted In: Discrimination and Harassment , Food for Thought

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New Jersey's Law Against Discrimination prohibits employers from taking adverse actions against their employees on the basis of race, gender, age, religion, sexual preference, disability, or membership in other protected categories. The law does not prohibit an employer from taking negative actions against employees for other reasons, such as nepotism, favoritism, office politics, and the like. Yet employees who lose their jobs for these reasons, or who endure harassment or bullying which is not “discriminatory” in the legal sense, often suffer the same emotional and financial upset as do victims of unlawful discrimination. What are some strategies for dealing with unfair treatment in the workplace?

I would advise anyone experiencing negative treatment in the workplace to immediately begin to diary or journal the events as they occur. If the situation worsens and becomes legally actionable down the road, the written record can be important evidence in your case. In addition, the act of writing down your problems can have a cathartic and healing effect.

Next, you should report the unfair treatment to your Company’s human resources department, preferably in writing. Yes, I know, they won’t do anything about it. But, again, the main reason for making the report is to create a paper trail which may come in handy down the road. There is also the slight chance that they actually listen to you and try to help you.

If you have documented and reported the unfair treatment and it still persists, you should seriously consider changing jobs. Situations like these tend get worse over time, not better. I’m speaking from personal experience, as well as what I’ve learned from counseling employees for the last ten years. You will wind up quitting or getting fired some time down the road anyway, and in the meantime you will be extremely stressed out, lose sleep, get depressed, angry, or anxious, all of which can lead to more serious health problems. No job is worth losing your health. The decision to leave a job on your own terms, on your own timetable, is an empowering one. Just make sure your job search does not interfere with your current job duties or violate any non-compete agreements you may have signed. It goes without saying that you should never quit a job until you have secured a new one.

If you are an employee caught in the gray area between unfair treatment and illegal discrimination or retaliation, consider speaking to a competent employment attorney who can lay out your options and help you make an informed decision about your next career move.

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Posted In: Discrimination and Harassment , Non-Compete Agreements , Severance Negotiations , Whistleblower Retaliation

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