Employment Discrimination

Know the Law

Rachel Weiner Apter - Director
Rachel Wainer Apter, Director

Employment Discrimination

The New Jersey Law Against Discrimination (LAD) prohibits discrimination and bias-based harassment based on actual or perceived:

  • Race or color;
  • Religion or creed;
  • National origin, nationality, or ancestry;
  • Sex, pregnancy, or breastfeeding;
  • Sexual orientation;
  • Gender identity or expression;
  • Disability;
  • Marital status or domestic partnership/civil union status;
  • Liability for military service;
  • Age;
  • Atypical hereditary cellular or blood trait, genetic information, and the refusal to submit to a genetic test or make available to an employer the results of a genetic test.

The law prohibits discrimination in all aspects of employment including but not limited to:

  • Recruitment, job postings, interviews, and hiring decisions;
  • Promotions;
  • Terminations;
  • Compensation, including salary and benefits;
  • All terms, conditions or privileges of employment; and
  • Membership in a union.

Anyone who believes their rights under the LAD have been violated may file a complaint with DCR within 180 days of the incident. Click here to learn more about filing a complaint with DCR.

Disparate Treatment vs. Disparate Impact

The LAD prohibits conduct that is intended to treat people differently based on their membership in a protected class (disparate treatment) as well as policies and practices that disproportionately affect those in a protected class, even when the policies and practices are neutral on their face and are not intended to discriminate (disparate impact).

Harassment, Including Sexual Harassment

The LAD prohibits bias-based harassment.  If someone is being subjected to bias-based harassment that creates a hostile environment, an employer must take reasonable steps to stop the harassment if they knew or should have known about it, even if the harassment is being perpetrated by a coworker rather than a supervisor.

A hostile work environment arises where the offensive or harassing conduct is severe or pervasive. However, even one racial slur may be severe enough to establish a hostile environment.

The LAD also prohibits sexual harassment, a form of gender-based discrimination.

Quid pro quo harassment is when a benefit (like a promotion) is conditioned on sexual favors, or when an adverse action (like getting fired) is threatened if a person refuses a sexual advance.

Hostile environment is when a person is subjected to unwanted harassing conduct based on gender that is severe or pervasive. This can include verbal harassment, such as obscene language or demeaning comments; physical harassment, such as unwanted touching; or visual harassment, such as displaying pornographic images, cartoons, or drawings.

Click here to view a fact sheet about protections from sexual harassment under the LAD.

Reasonable Accommodations for Disability and Religion

The LAD’s prohibition against discrimination against persons with a disability means that in addition to affording persons with a disability the same rights and privileges of employment as persons who do not have a disability, employers must provide a reasonable accommodation to a person with a disability unless doing so would impose an undue burden.  A reasonable accommodation may include such things as:

  • Making facilities readily accessible (including allowing a person with a disability to be accompanied by a service animal);
  • Job restructuring, including modified work schedules and/or leaves of absence;
  • Acquisition or modification of equipment or devices (including interpreters); and/or
  • Job reassignment.

The obligation to provide a reasonable accommodation also applies to accommodations on the basis of religion.  So, for example, an employer who has a “no head covering” policy would be required to grant a reasonable accommodation to a Muslim woman who wears a hijab or a Jewish man who wears a yarmulke, unless doing so would be an undue burden on their operations.

Click here to view a fact sheet about religious discrimination under the LAD.

Equal Pay

The Equal Pay Act within the LAD generally prohibits an employer from paying any employee who is a member of a protected class less than what it pays an employee who is not a member of that protected class for “substantially similar work.” Whether work is substantially similar is a combination of skill, effort, and responsibility.

All forms of compensation are covered by the Equal Pay Act, including salary, bonuses, health benefits, and pension plan contributions. Wage rates are compared across all of an employer’s operations or facilities. And an employer cannot reduce the rate of compensation of any employee in order to comply with Equal Pay Act.

A separate violation of the Equal Pay Act occurs each time a person is paid disparate wages. A complaint with DCR is timely if it is filed within 180 days of the most recent discriminatory paycheck; lawsuits must be filed in court within two years of the most recent discriminatory paycheck.

The Equal Pay Act also prohibits an employer from retaliating against someone for requesting salary information from a coworker, or from discussing with or disclosing such information to any coworker, lawyer, or government agency.

Click here to view a fact sheet about the Diane P. Allen Equal Pay Act, and here to view a guidance document explaining the Act.

Pregnancy and Breastfeeding

The LAD requires an employer to grant reasonable accommodations for pregnancy, childbirth, related medical conditions, and breastfeeding to enable a person to continue working while maintaining a healthy pregnancy or return to work after giving birth. The LAD is more protective than the federal Pregnancy Discrimination Act in this regard.

An employer must grant a pregnant person a reasonable accommodation recommended by their doctor, including bathroom breaks, water breaks, rest breaks, assistance with manual labor, job restructuring, modified work schedules, and a temporary transfer to less strenuous or hazardous work, unless the employer can show that doing so would be an undue hardship on its operations.

An employer must grant a person who is breastfeeding reasonable break time each day, and a suitable private place (other than a toilet stall) in which to express breast milk, unless employer can show that doing so would be an undue hardship on its operations.

Factors to be considered in whether an accommodation would be an undue hardship include the overall size of the employer’s business with respect to employees, facilities, and budget; the nature and cost of the accommodation needed; and the extent to which the accommodation would involve waiver of an essential requirement of the person’s job.

Click here to view a fact sheet about accommodations for pregnancy and breastfeeding at work.

Retaliation

The LAD prohibits retaliation against a person for complaining about, reporting, or cooperating in an investigation of alleged discrimination or biased-based harassment, or otherwise exercising or attempting to exercise their rights under the law. For example, an employer cannot fire, demote, or otherwise penalize an employee for reporting sexual harassment to human resources or to DCR.

Obligation to Mitigate Damages

In an employment discrimination case, any employee or job applicant seeking lost wages is required to “mitigate” or minimize their damages. That means the employee must seek and accept comparable employment. The employee or job applicant should be prepared to present evidence that they sought another job or business venture, and did not reject any offer of a comparable job or a job that was reasonable under the circumstances.

To support a claim for lost wages, an employee should keep a record of their job search for as long as they remain unemployed, or as long as they are earning less than they would have earned if there had been no discrimination.

Here is a form that you can use to help you keep track of your job search. You can also retain information regarding your job search in another manner, including a job search diary or a list with the relevant information on your computer. It is also helpful to keep copies of documents related to your job search, including job advertisements you respond to, cover letters and resumes, and any acknowledgment, rejection, or job offer letters that you receive back.

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