New Jersey Discrimination Lawyers

The New Jersey Law Against Discrimination (NJ LAD) applies to all employers, regardless of size, whether paid or unpaid. The law guarantees to all equal opportunity to obtain:

  • Employment;
  • Accommodation, advantages and privileges in places of public accommodation, including education and medical care; and
  • Assisted housing and to the purchase or rental of other real property.

The law states that employers cannot discriminate based upon:

  • Race;
  • Creed;
  • Color;
  • National Origin;
  • Ancestry;
  • Age;
  • Marital Status;
  • Sexual Orientation;
  • Familial Status;
  • Disability;
  • Nationality;
  • Sex;
  • Gender Identity;
  • Expression or Source of Income;
  • Liability for service in the Armed Forces; or
  • Refusal to submit to genetic test.

What is unlawful?

It is unlawful for employers to refuse to hire, fail to promote or unfairly discharge or require employees to retire for reasons of discrimination. It is also unlawful for any person to aid and abet or incite, compel or coerce unlawful acts of discrimination.

What are the exceptions?

An employer can refuse applicants who received notice of induction or orders to report to the U.S. Armed Forces. An employer can also refuse on the basis of gender if it is a bona fide occupational qualification. And an employer can refuse to accept or promote a person over 70 years of age.

Disability Exceptions:

LAD is not violated if disability precludes performance

Includes physical, psychological, developmental disabilities and AIDS/HIV

Useful Definitions

What does “discriminate” mean? It means to:

  • To limit, segregate, classify Job Applicant or Employee in a way that adversely affects opportunities or status because of disability;
  • To participate in or utilize standards or criteria that discriminates based on disabilities;
  • To perpetuate discrimination of others subject to common administrative control;
  • To exclude those with a relationship or association with a disabled person;
  • Not making reasonable accommodations—exception: undue hardship to operation of business;
  • Denying employment based on need to make accommodations;
  • Using qualification standard that screens out individuals with disabilities—exception: unless standard is job-related and a business necessity; or
  • Failing to select and administer tests to ensure results accurately reflect skills, aptitude, rather than disability—exception: when such skills are the factors for measurement.

What are Reasonable Accommodations?

Reasonable accommodations include:

  • Making existing facilities readily accessible;
  • Job restructuring, modifying schedules, reassignment to vacancy; and/or
  • Acquiring or modifying equipment, devices, examinations, training materials, policies, and providing qualified readers or interpreters.

What is “Undue Hardship?”

Action requiring significant difficulty or expense in light of employer size, financial resources, nature and structure of business operations

Enforcement of NJ Law Against Discrimination

p>The New Jersey Division on Civil Rights (DCR) is charged with enforcement of the NJ Laws against Discrimination. The DCR’s work-sharing agreement with the U.S. EEOC provides that each will process certain categories of charges. An Aggrieved person (employee) may pursue relief in the DCR or Superior Court.  However, if a final determination has been made by the Court, a complaint can no longer be filed in the DCR for the same grievance.Procedure in the DCR

  • An Aggrieved person files a written verified complaint on a printed form;
  • An Aggrieved person must state the details and identify persons and describe the violation;
  • No civil action may be filed in Superior Court once the DCR proceeding is commenced;
  • The DCR investigates ;
  • Discovery commences, which may or may not result in a fact-finding conference;
  • Finding of the Investigation are prepared;
  • If mediation is not successful, a hearing is scheduled;
  • An Administrative Law Judge (ALJ) makes findings of fact and conclusions of law; and
  • The Director adopts, rejects or modifies the decision of the ALJ.

If you feel you have been discriminated against or your civil rights have been violated, speak with one of our experienced Civil Rights Attorneys. The law, the violations, and federal and state statutes and decisions can be complicated and difficult to navigate.

To prove your case, a civil rights attorney will:

  • Evaluate all of the circumstances and details of your case;
  • Explain the law and your options under the law; and
  • Represent your interests and assist you in filing a claim and achieving the best outcome through the courts or administrative agency.

Also, read the article by Andrew Berns and Tim Ford, “Hiring Practices, Do They Have a Case?” for more on the laws governing discrimination in the workplace. If you are an employer, we will work with you to defend any claims brought against you by a complainant in the DCR or in any State or Federal jurisdiction.

Discrimination—Age

What is unlawful?

It is unlawful for employers to fail to hire or discharge or to discriminate because of age with regard to employment terms, conditions or privileges. The law applies to industries with 20 or more employees.

Exceptions:

When age is a bona fide occupational qualification

To observe the terms of benefit plan

Employees age 40 and older are protected under the Age Discrimination in Employment Act.  NJ LAD protects all employees, starting at age 18 and beyond.  NJ LAD does prohibit termination of individuals over the age of 70 simply because of advanced age.

Discrimination—Race/Ethnicity

New Jersey State and Federal law prohibits harassment and the unfavorable treatment of someone because of the person’s race or personal characteristics associated with their race or ethnicity. The law forbids race/ethnicity discrimination in any aspect of employment, including hiring, firing, pay and benefits. Employers should implement policies that apply to everyone regardless of race or color and should consult the attorneys at Einhorn Harris to determine if the policy is legal.  If employee policies have a negative impact on the employment of people of a particular race or color, and if it is not related to the job and necessary to the operation of the business, these policies can be illegal.

Title VII of the Civil Rights Act of 1964 “prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.”

Equal employment opportunity cannot be denied because of:

  • Marriage to or association with someone of a particular race/ethnicity;
  • Membership in or association with ethnic groups;
  • Attendance or participation in ethnic schools or places of worship; or
  • Other cultural practices or characteristics often linked to race or ethnicity if the cultural practice or characteristic does not materially interfere with the ability to perform job duties.

Discrimination—Gender

The law prohibits discrimination by subjecting persons to different or unequal treatment in situations when the treatment is based on the person’s gender or sex.

The situations where gender discrimination can take place include but are not limited to situations in employment, where a potential employer asks discriminatory questions based on gender during an interview, or where employers fail to hire or promote or wrongfully terminate an employee based on his or her gender.  In education, discrimination can occur when individuals are excluded from educational opportunities based on gender.  In housing, when individuals are turned away from housing or different lease or contract terms are imposed or when they are refused a loan or credit based on their gender.  The law also prohibits sexual harassment in all of these and other situations.

Discrimination—Sexual Orientation

It is unlawful to harass to treat individuals differently based on their perceived or actual gay, lesbian, bi-sexual, or heterosexual orientation.  Many workplaces have policies that prohibit being passed over for a promotion, evaluated harshly, subjected to name-calling, or suffering wrongful termination because the employer or manager disagrees with their sexual orientation. Although there is currently no federal law prohibiting discrimination based on sexual orientation, the Employment Non-Discrimination Act (ENDA) has been introduced in Congress to ban discrimination based on sexual orientation and gender identity. The New Jersey Law Against Discrimination (LAD) makes it unlawful to “subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status.”

This law applies equally to men and women and includes heterosexuality and homosexuality, prohibiting employee actions like:

  • Hiring and firing based on such discrimination;
  • Forcing retirement; and
  • Unequal salaries or terms, conditions and privileges of employment based on such discrimination.

The law protects individuals against discrimination in employment, access to public places, business transactions and housing.  There are exceptions with regard to offering insurance and other fringe benefits to unmarried couples. Consult with our attorneys to learn your rights and responsibilities under the law.

Discrimination—Disability

NJ LAD prohibits discrimination based on physical or mental health disabilities.  In addition, the Americans with Disabilities Act:

  • Applies to employers with 15 or more employees for each day of 20 or more calendar weeks in current or preceding year;
  • Provides that no employer shall discriminate against qualified individuals with disabilities with regard to:
    • Job application procedure;
    • Hiring;
    • Advancement;
    • Discharge;
    • Compensation;
    • Job Training; or
    • Other terms, conditions and privileges of employment.

Discrimination—Ancestry

It is illegal to discriminate against an individual based on ancestry or the country from which a person’s ancestors originated.  This includes discrimination based on the physical, cultural, or linguistic (language) characteristics of the country of one’s ancestors.

Employers who require that their employees speak English at all times while on the job may risk a discrimination claim by an employee if that employee does not speak English.

An employer who decides not to hire based on a person’s accent, or an employer who enforces a dress code or uniform that may conflict with ancestral beliefs or practices may also be at risk.  Contact an attorney at Einhorn Harris for counsel regarding this aspect of the Federal or State Laws Against Discrimination.

Discrimination—Pregnancy

It is illegal to harass or treat a woman unfavorably (as an individual, an applicant or employee) because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law forbids discrimination in any aspect of employment, including:

  • Hiring;
  • Firing;
  • Pay;
  • Job assignments;
  • Promotions;
  • Layoffs;
  • Training;
  • Benefits like leave and health insurance; and
  • Any other term or condition of employment.

Pregnancy Discrimination & Temporary Disability

A pregnant woman, who is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, is a temporarily disabled employee and should be treated as a disabled employee with considerations, such as:

  • Having tasks modified;
  • Alternative work assignments;
  • Disability leave; or
  • Unpaid leave as the laws regarding disability apply.

Pregnant employees may have additional rights under the Family and Medical Leave Act (U.S. Dept of Labor) (FMLA), New Jersey Family Leave Act (FLA), or Temporary Disability Benefits Law.

Discrimination—National Origin

It is unlawful to discriminate against any employee or applicant because of the individual’s country of origin. The law provides for equal employment opportunity, which cannot be denied because of:

  • Birthplace;
  • Ancestry;
  • Culture;
  • Linguistic characteristics common to a specific ethnic group,
  • Accent;
  • Marriage or association with persons of a national origin group;
  • Membership or association with specific ethnic groups or those who promote them;
  • Attendance or participation in schools, or religious organizations or affiliations generally associated with a national origin group; or even
  • A surname associated with a national origin group.

Title VII also prohibits any employment decision with regard to recruitment, hiring, and firing or layoff, based on national origin, and prohibits harassment including offensive conduct like slurs or anything that creates a hostile workplace. Employers cannot hire or fire employees based on their foreign accent or English fluency, with certain work-related and performance exceptions, and employers are prohibited from establishing English as the only language used in the workplace, unless this is required for the operations of the business. Although employers cannot discriminate against individuals employed in the U.S. who do not have U.S. citizenship, for individuals who do not have work authorization, other statutes may apply, such as The Immigration Reform and Control Act of 1986 (IRCA).  If you are an employer who has foreign nationals as employees or if you are working in the U.S. with citizenship in a foreign country, contact the attorneys at Einhorn Harris for counsel or information regarding how Title VII of the Civil Rights Act of 1964 applies in your circumstances.

Given the complexities of Discrimination Issues in New Jersey, we advise you to contact one of our experienced employment lawyers or closely-held business attorneys at 973-627-7300 at Einhorn Harris today. We handle discrimination issues throughout New Jersey.