Credit & Business Transactions
It is unlawful for a person to refuse to buy from, sell to, contract or otherwise do business with an individual because of the individual’s race, creed, color, national origin, nationality, ancestry, marital status, domestic partnership or civil union status, liability for service in the Armed Forces of the United States, age, sex, affectional or sexual orientation, gender identity or expression, or disability or because of race, creed, national origin or other protected characteristics of the person’s spouse, partners, employees, business associates, suppliers or customers. It is also unlawful for any bank or financial institution to deny credit or particular terms of a credit transaction (such as loan rates) to an individual on any of these bases.
The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating in any job-related action, including recruitment, interviewing, hiring, promotions, discharge, compensation and the terms, conditions and privileges of employment on the basis of any of the law’s specified protected categories. These protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses. The LAD prohibits intentional discrimination based on any of these characteristics. Intentional discrimination may take the form of differential treatment or statements and conduct that reflect discriminatory animus or bias.
Moreover, an employment policy or practice that is neutral in its terms may be deemed unlawful if the policy or practice has an adverse impact on protected groups. However, the disparate impact may be lawful if the employment policy or practice meets an important, legitimate business need that cannot be served with a non-discriminatory measure. For example, screening out applicants for employment based on certain physical traits, such as setting a minimum height requirement, may exclude disproportionate numbers of women and people of certain national origins or ancestries. If the height requirement has a disparate impact on a protected group and is not related to an applicant’s ability to perform important job duties, it may be deemed unlawful. To establish the lawfulness of a policy or practice that has a demonstrated disparate impact, an employer would have to establish that the policy is job related and consistent with business necessity, and that effective alternative practices are not available.
A physical requirement is more likely to be regarded as unlawful if there is an alternative measure of job related abilities, such as strength or stamina tests, that would provide a more accurate evaluation of a candidate’s ability to perform without screening out qualified members of groups that historically have been excluded from particular jobs.
The LAD also prohibits harassment based on protected characteristics such as race, sex or nationality. Under the LAD, sexual harassment includes unwelcome sexual advances, requests for sexual relations or other verbal or physical conduct of a sexual nature. There are generally two types of sexual harassment. Quid pro quo harassment occurs when an employer, or an employer’s agent, implicitly or explicitly attempts to make submission to sexual demands a condition of employment. Thus, an employee may perceive that he or she must tolerate sexual advances or engage in a sexual relationship in order to continue employment, to achieve advancement, or to avoid adverse employment consequences such as poor evaluations or demotions. Similarly, it is unlawful for an employer or an employer’s agent to condition favorable treatment such as promotions, salary increases, or preferred assignments, on an employee’s acceptance of sexual advances or relations.
Hostile work environment sexual harassment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her gender. Such conduct creates an unlawful work environment when it is severe or pervasive enough to make a reasonable person of the employee’s gender believe that the conditions of employment have been altered and the working environment has become hostile or abusive. The conduct does not have to be sexual in nature and does not have to involve physical contact. For example, if a woman is subjected to non-sexual taunts or adverse treatment because of her gender, her work environment may be deemed unlawfully hostile and abusive. This analytical framework may also be applied to hostile work environments created because of an employee’s race, nationality, creed, disability, or other characteristics enumerated by the LAD. For example, racial slurs or offensive comments or jokes about a person’s dress, culture, accent or ethnic background may be severe or pervasive enough to create a hostile or abusive environment that violates the LAD.
Finally, the LAD prohibits employers from denying employment opportunities to people with disabilities unless the employer reasonably determines that the nature and extent of a person’s disability reasonably precludes his or her safe performance of a particular job. In order for the decision to be reasonable, the employer must determine that the employee’s disability precludes the performance of essential duties, not merely hinders the execution of some tasks. Furthermore, before deciding that a person’s disability precludes his or her safe performance of a particular job, an employer must first consider the possibility of making reasonable accommodations, that is, adjustments to the work assignment or workplace, that may enable the person to perform the essential functions of his or her position.
Federal and state courts have reasoned that an employer’s obligation to provide reasonable accommodation may sometimes require an employer to request information about an employee’s abilities and need for accommodation. Accordingly, if an employer has reason to believe that an employee has a disability, the mere fact that the employee does not request an accommodation may not relieve the employer from the responsibility of providing reasonable accommodations that will enable the employee to perform the essential functions of his or her job.
An accommodation may be required even if it causes the employer some inconvenience or cost. An employer must make reasonable accommodations to the limitations of an employee or applicant with a disability unless the accommodation imposes an undue hardship on the operation of its business.
On the other hand, an employer is generally free to distinguish between applicants and employees on the basis of their qualifications, competence and job performance, provided reasonable accommodations are made to qualified people with disabilities.
The New Jersey Law Against Discrimination (LAD) prohibits discrimination when selling or renting property. The law covers owners, agents, employees and brokers and makes it unlawful to refuse to rent, show or sell property based on a person’s race, creed, color, national origin, nationality, ancestry, marital status, domestic partnership or civil union status, familial status, affectional or sexual orientation, gender identity or expression, sex, or mental and physical disability, including AIDS and HIV-related illness. In addition, the LAD prohibits discrimination in the housing context based on one’s source of lawful income or rent subsidy. Examples of sources of lawful income include, child support, alimony, gifts from family members, supplemental security income, etc. Other sources include assistance from a federal loan program through the Department of Housing and Urban Development (HUD), state loan programs through the New Jersey Housing and Mortgage Finance Agency (NJHMFA). Rent subsidies are programs where the individual qualifies for financial assistance through governmental programs. In this situation, a tenant or a potential tenant qualifies for rental assistance programs, through county and local housing authorities, or through the HUD section 8 program. The main difference between a loan and rental assistance through State or Federal agencies is that a subsidy need not be paid back to the lender while the same is not true in a loan assistance program. The LAD does not prohibit discrimination on the basis of age in a housing context. However, it is unlawful to discriminate against families with children, except in certain qualified housing developments intended specifically for older persons, which may be allowed to exclude children. The LAD also does not prohibit discrimination on the basis of sex where the property is planned exclusively for and occupied exclusively by individuals of one sex.
By way of example, it is illegal for a landlord or real estate professional to refuse to rent:
- To a single mother with children, if this decision is made on the basis of her marital status or domestic partnership status;
- A one bedroom apartment to two members of the same sex, if they are otherwise qualified
- To an individual with a mental or physical disability. However, generally under the LAD, a landlord in an existing building is not required to modify the property to provide assistance to a person with a disability. On the other hand, the landlord is prohibited from charging extra fees for any accommodations provided to a person with a disability. For example, a landlord cannot charge a person with a disability extra rent for keeping a guide or service animal. The landlord is, however, entitled to reimbursement for damage done by a guide or service animal
- To an individual with a disability who relies on a guide or service animal, even if the facility does not permit pets;
- To a person with AIDS or HIV infection or to someone perceived to have AIDS or HIV infection.
In addition, it is illegal to subject a renter, applicant, or home buyer to sexual harassment. Sexual harassment is defined as unwelcome sexual advances, requests for sexual contact, and/or other verbal or physical conduct of a sexual nature.Harassment and differential treatment based on race, national origin or other protected characteristics is also unlawful.
Landlords may require that a potential tenant complete an application with questions regarding the applicant’s income, credit history and debts, as long as all prospective tenants are required to complete the same application and all tenants are selected on the basis of uniform standards. The form must not contain any reference to race, creed, color, national origin, nationality, ancestry, sex, marital status, domestic partnership status, affectional or sexual orientation, familial status or disability.
The New Jersey Law Against Discrimination (LAD) prohibits an owner, manager, or employee of any place that offers goods, services and facilities to the general public, such as a restaurant, hotel, doctor’s office, camp, or theater, from directly or indirectly denying or withholding any accommodation, service, benefit, or privilege to an individual because of that individual’s race, creed, color, national origin, nationality, ancestry, marital status, domestic partnership or civil union status, sex, affectional or sexual orientation, gender identity or expression, or disability. Further, individuals accompanied by a guide or service dog are entitled to full and equal access to all places of public accommodation.
There are certain exceptions. Places of public accommodation which, by their nature, are reasonably restricted to individuals of one gender (such as dressing rooms or gymnasiums) may deny access to the accommodation to members of the other gender. Also, the provisions of the LAD that govern public accommodations do not apply to a place of public accommodation that is “in its nature distinctly private” or to schools operated by bona fide religious institutions. However, it is unlawful for a private club or association to discriminate against a member with respect to the advantages and privileges of membership on the basis of race, creed, color, national origin, nationality, ancestry, marital status, domestic partnership status, sex, or affectional or sexual orientation.
The New Jersey Law Against Discrimination (LAD) prohibits acts of reprisal against a person because he or she has opposed any practice or act forbidden under the LAD, or because he or she has filed a complaint, testified at or assisted in any proceeding under the LAD. Thus, the LAD prohibits adverse actions motivated by a desire to retaliate against a person for reporting or complaining about conduct that the person believes is unlawful discrimination. Similarly, actions designed to discourage people from giving testimony or from objecting to or reporting discrimination are also unlawful.
Under the NJFLA, it is unlawful to discharge or retaliate against an employee for asking questions about family leave, attempting to take family leave, or filing a complaint alleging a violation of the NJFLA.