SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Posted in Law Against Discrimination

For the past year, employees have been undergoing medical screenings and answering questions about their personal health to gain access to their physical workplaces. Employers can lawfully request their health status or require them to take leave from work if they appear to have symptoms of COVID-19. Despite laws protecting employee privacy and the dignity of being in control of our own medical decisions, the public health emergency resulting from the spread of COVID-19 has drastically changed the landscape when it comes to employment decisions based on disability or perceived disability, the duty to reasonably accommodate and the prohibition against workplace retaliation.

6AE55F99-A017-42B1-BEAB-4D7220445832-300x169The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces workplace anti-discrimination laws, including the Americans with Disabilities Act and the Rehabilitation Act. The Americans with Disabilities Act makes discrimination based on disability illegal and protects from retaliation individuals who exercise their rights under that law. Other laws, including state and local laws, such as the New Jersey Law Against Discrimination and the New York City Human Rights Law, provide employees with additional protections. Anti-discrimination laws continue to apply during the time of the COVID-19 pandemic, but they must coexist with guidelines released by the Centers for Disease Control (CDC) and state and local health authorities concerning, among other things, an employer’s right to access employees’ medical information and perform health screenings in the workplace. The intertwining of anti-discrimination laws and public health regulations in the current climate has created a question about whether a COVID-19 infection or perceived infection qualifies an employee for anti-discrimination protection based on disability. The answer will be different depending on whether federal or state law governs the employment relationship, and if state law, which state.

Disability discrimination occurs under the federal Americans with Disabilities Act when an employer treats an employee unfavorably because he or she has a disability, has a history of a disability (such as cancer that has entered remission), or because the employer believes the employee has or used to have a disability. However, not all medical conditions equate to disabilities under the legal definition of the term. A person can show that he or she has a disability in one of three ways: (1) he or she has a physical or mental condition that substantially limits a major life activity (such as walking, hearing, learning, or limits the operation of a major bodily function); (2) he or she has a history of such a disability (past depression that is currently being successfully treated); or (3) he or she is subject to an adverse employment action (such as demotion, termination or a change in job duties or pay) due to the employer’s belief that he or she has a physical or mental impairment that is more than something minor and temporary.

In a landmark decision, the New Jersey Supreme Court has held that employees who suffer from a disability do not need to show an adverse employment action in order to prevail on a failure to reasonably accommodate claim. The case is being considered by New Jersey employment lawyers as a major victory for workplace rights of disabled employees. 

fullsizeoutput_3f-300x169The case was brought under the New Jersey Law Against Discrimination, which is widely considered one the country’s strongest state anti-discrimination laws in the country. While the Law Against Discrimination mirrors the Americans With Disabilities Act (“ADA”), it does provide for some greater protections than the federal counterpart. However, both laws share the same remedial goals to allow disabled persons to maintain gainful employment by requiring employers to provide reasonable accommodations that will allow them to perform the essential functions of the job.  Accommodations are not considered “reasonable” if they impose an undue hardship on the employers business operations, and thus not required.  To establish a prima facie claim when he or she is able to show that he or she: (1) qualifies as an individual with a disability or is perceived as having a disability; (2) is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate his or her disabilities. 

In the case entitled, Richter v. Oakland Board of Education, Nos. A-23 September Term 2019, 083273 (June 8, 2021), a teacher who suffered from Type-1 diabetes, sued her employer after experiencing a hypoglycemic event in her classroom during she fainted and hit her head on a science laboratory table.  As a result of the fall, Ms. Richter sustained serious and permanent life-altering injuries. Ms. Richter blames the school for the injuries because they had refused her request for an accommodation to eat lunch earlier in the day to maintain proper blood sugar levels.  According to Ms. Richter, if she was granted the requested reasonable accommodation, she would not have suffered the hypoglycemic event and would not have suffered the significant injuries.  

For many teens, a summer job is a rite of passage, a way to earn money and gain independence, and start the transition into adulthood. For many teen girls working for Ocean City Beach Patrol, their summer lifeguarding jobs allegedly also came with unwanted groping, sexual harassment and sexual assault at the hands of their male supervisors. In recent news, local media sources have reported that a viral Instagram account called @ocbp_predators has led the Cape May County Prosecutor’s Office to investigate hundreds of allegations of sexual harassment and assault by members of the Ocean City Beach Patrol (OCBP). Reading through the accounts is disturbing. According to the anonymous posters, most of the misconduct was perpetrated by adult men in their thirties and forties against teenaged female lifeguards working for the OCBP.

IMG_6590-300x169Providing a link to RAINN, the national sexual assault hotline, the Instagram account contains allegations of male guards, some of whom are also teachers in Ocean County public schools, being involved in incidents where their teenaged direct reports were continuously sexualized at work and plied with drugs and alcohol at after-work parties, where often they would wake up unaware of what had happened to them the night before. Several of the Instagram posts referred to older male lifeguards repeatedly citing New Jersey’s age of consent, which is 16, to assert their entitlement to have sexual contact with the younger girls they supervised. However, New Jersey bars any adult in a position of authority having sexual contact with employees under the age of 18.

It seems clear that if the allegations against the male lifeguard supervisors are true, they could be facing criminal penalties, but that is not always the case. Sexual assault against teenagers is a significant societal problem that often goes unaddressed. According to TeenHelp.com, teenagers account for at least half of all reported instances of sexual abuse, with teens of working age (16-19) being over three times as likely as the general public to be victims. Additionally, once victimized, the same teen is more likely to experience further abuse, and when the victim is a high school aged female, she is more likely than others to develop eating disorders, risky sexual behaviors, unwanted pregnancies, and suicidal ideation. Despite these staggering statistics, less than one-third of sexual assaults against teens are reported. The low reporting rate may be due in part to the fact that only about half of abusers are eventually arrested and a measly 16% are imprisoned. Of those who do go to jail for their crimes, the average sentence is about 4 months. Approximately 80% of jailed rapists report that their victims were under the age of 18. What laws, other than the criminal code, are there to protect these girls?

In January, during a television news interview, then President Donald Trump said about the novel coronavirus, “It’s one person coming in from China.” That one remark, seemingly a purely geographical description of the virus’ origin, became the starting point from which our former President attempted to shift blame from his doorstep to China’s for mounting deaths, unemployment, shuttered businesses, food and housing insecurity and widespread panic. By convincing his supporters that our country’s pandemic response was actually Americans being forced to fight a war against an invisible Chinese invader, Trump caused a drastic shift in our political climate that resulted in Asian Americans becoming targets of hate crimes, harassment and discrimination.

IMG_1E2345D1B7BA-1-300x225Can one person’s words, even if made publicly, really cause an entire race of people to suffer abuse and harassment? In short, yes; harassment or much worse. All we need to do to know that is to revisit the history of Nazi Germany, the Yugoslav Wars of the 1990s, the Rwandan genocide in 1994, and the American response to the Japanese after World War II. Xenophobic rhetoric, especially when propagated by a political leader, can absolutely lead to hate and discrimination and in the worst cases, extreme violence. After the September 11, 2001 terrorist attacks, the Equal Employment Opportunity Commission (EEOC) tracked the number of bias complaints filed by Arab, Muslim, Middle Eastern, South Asian and Sikh workers in the U.S. and saw a 250% increase in the wake of 9/11. This drastic response occurred despite then President George W. Bush urging people not to discriminate.

In contrast, consider Trump’s narrative around the coronavirus. In April 2020, at a press briefing, Trump linked the unfolding pandemic to his conservative immigration policy: “Therefore, in order to protect American workers, I will be issuing a temporary suspension of immigration into the United States”. In May 2020, as the pandemic worsened on U.S. soil and Trump was taken to task for his perceived nonchalance around the virus, he responded, “Intelligence has just reported to me that I was correct, and that they did NOT bring up the Corona Virus subject matter until late into January, just prior to my banning China from the U.S.” In a tweet that same month, “Great reviews on our handling of Covid 19, sometimes referred to as the China Virus.” In July 2020, as the country approached 4 million cases of Covid-19, unemployment was rising, and growing numbers of citizens were becoming food or housing insecure, Trump tweeted, “We are United in our effort to defeat the Invisible China Virus, and many people say that it is Patriotic to wear a face mask when you can’t socially distance. There is nobody more Patriotic than me, your favorite President!”Later that month, “You will never hear this on the Fake News concerning the China Virus, but by comparison to most other countries, who are suffering greatly, we are doing very well – and we have done things that few other countries could have done!” Remembering Herman Cain during a White House briefing after his death from Covid-19 last year, Trump said “he passed away from the thing called the China virus.” In August 2020, as the U.S. reached 6 million cases of Covid-19, Trump referred to the virus publicly as “the China virus” at least another 4 times, including during a virtual rally in Nevada when he said, “I mobilized the largest response since World War II to fight the China virus and we are really doing well. Our numbers are excellent, really really good, and hopefully, we’re rounding the final turn on that disaster given to us by China.” As U.S. deaths passed 200,000 in September 2020, Trump linked the coronavirus to China a dozen more times, often by using wartime analogies and imagery to emphasize his patriotism and to cast the virus as a hostile foreigner. During rallies in North Carolina, Nevada, Michigan and Florida, he referred to it as “the invisible enemy” and made repeated references to defeating “the China virus.” During a rally in North Carolina, he stated “We will end the pandemic from China. We will end our — our plague from China.”

“There’s a long and ugly history at Edna Mahan,” said New Jersey Attorney General Gurbir Grewal. He was referencing not only the January 11, 2021 attack in which prison guards wearing riot gear beat, pepper sprayed and sexually assaulted the female inmates housed at the Edna Mahan Correctional Facility for Women in Clinton, New Jersey. The long history of sexual abuse at Edna Mahan dates back at least to the early 1990s, and a searing report issued in the Spring of 2020 by the Department of Justice has exposed the prison as a hostile and abusive environment, not because of the inmates’ crimes, but because of the guards whose duty it has been to house, feed and protect these women.

C3AC1131-D54A-483E-826B-FE4BDF8B551D-300x166Around midnight on January 11, 2021, over two dozen officers forcibly removed the women inmates from their cells, resulting in broken bones, concussions, and in at least one instance, forcible sexual penetration. Although we typically protect the privacy of harassment and assault victims, some of the women who were attacked have chosen to come forward publicly. Inmate Ajila Nelson said she was beaten and sexually assaulted in her cell during the extraction. Desiree Dasilva was punched repeatedly in the head resulting in a broken eye socket and said an officer left a boot print on her arm. Emmalee Dent was punched in the head approximately twenty-eight times by one of the guards as she pressed herself against a wall and attempted to protect herself from the blows. Inmate Faith Haines told a local media outlet that the attack started when another prisoner became upset that her cell had been searched while she was outdoors for recreation. Reportedly, Sean St. Paul, an administrator who was suspended in the wake of the attack threatened the inmates with similar discipline “every night” that they “acted up”.

A few weeks later, three prison guards – Sergeant Amir Bethea, Sergeant Anthony Valvano and Officer Luis Garcia – were accused of filing false reports in an effort to cover up the attack and were charged with official misconduct, tampering with public records, and Garcia was charged with aggravated assault for the beating of Emmalee Dent.

In Manchester, a township in Ocean County, New Jersey where 92% of its approximately 43,000 residents are white, a star high school basketball player’s attempt to speak out against issues of race discrimination and inequity was shut down by the Board of Education. At the most recent Board meeting, star basketball player Destiny Adams, presented a thoughtful speech to the Board to persuade them that the girls basketball team should be permitted to wear Black Lives Matter sweatshirts during the pregame warmup to their first game of the season, which took place Tuesday, January 26. Destiny was supported at the meeting by her mother, an attorney, and her father, the principal of Manchester High School, both of whom also spoke. Without discussing her proposal among the members of the Board or taking an official vote on it, the Board denied her request, stating that warmup gear may only display the school’s name.

fullsizeoutput_3c-1-300x169In speaking to news media, Destiny said of the Board’s decision, “They told me no, but that can’t really silence me, so we needed to find a way around it”. In fact, Destiny and most of her teammates wore Black Lives Matter sweatshirts prior to their season opener last night against Jackson Liberty High School despite the Board’s ruling. Destiny and another teammate also wore socks that said Black Lives Matter, while another player wrote Black Lives Matter on her sneakers.

According to the New Jersey State Interscholastic Athletic Association, what players wear during pregame warmups is determined at the school’s discretion. From a legal standpoint, the question is how to balance public school students’ First Amendment right to freedom of expression with a school’s right to ensure the school environment is not disrupted and the rights of one student do not infringe on the rights of another.

Disability discrimination remains a persistent problem in the workplace. But it does not happen only at work. Last month, a Norwood, New Jersey teenager was cut from her school’s volleyball team because she has epilepsy. After her father reported what he believed to be discriminatory conduct and demanded that the school adhere to her rights under the New Jersey Law Against Discrimination, she was permitted back on the team. Once she was playing again, however, she was subjected to bullying and harassment from her teammates that lasted the entire school year according to the Complaint filed by her father on October 1, 2020.

fullsizeoutput_3f-300x169Norwood is a small K-8 district where the minor plaintiff (referred to by her initials, EP) received special education and related services due to several disabilities including social anxiety and epilepsy. In addition to being a special education student at Norwood public school, EP was also a member of the volleyball team. Along with her teammates, she tried out for and made the team in her 6th and 7th grade years. When she tried out in her 8thgrade year, she was shocked when she found out that she was the only 8thgrade student who did not make it. When her father addressed his daughter’s removal from the volleyball team with school administrators, EP was allowed back on the team, but was subject to bullying by her teammates for the rest of the school year.

The family filed a Complaint in the New Jersey Superior Court for Bergen County against the Norwood Board of Education and Vito DeLaura, the principal of Norwood public school, alleging violations of the New Jersey Law Against Discrimination and Anti-Bullying Bill of Rights Act. In the lawsuit, the family alleges that Mr. DeLaura, who they claim has a history of singling out and humiliating EP due to her disabilities, instructed the volleyball coach not to let EP play. Specifically, the lawsuit claims the volleyball coach cut EP from the team because her epilepsy required the school to hire a nurse who would be present at all games and practices, creating a significant financial burden on the school district. The family claims that the subsequent bullying was due to EP’s disabilities and was not addressed properly by the school.

Late last month the state of California, the California Department of Fair Employment and Housing, the state of Minnesota, the Minnesota Department of Human Rights, the state of Maryland and the Maryland Commission on Civil Rights, together filed a lawsuit against the Equal Employment Opportunity Commission (EEOC) stemming from the EEOC’s decision to stop sharing important data with state and local “fairness in employment practices agencies” (FEPAs). The complaint filed in the Federal District Court for the Northern District of California alleges that the EEOC’s decision has negatively impacted state efforts to eradicate workplace discrimination and violates Title VII of the Civil Rights Act of 1964. It also alleges that the decision violates the federal Administrative Procedure Act, because the change was made without consultation or adequate notice to state FEPAs with whom the EEOC has longstanding worksharing agreements. The states and state agencies involved in the lawsuit are seeking an order setting aside the EEOC’s new policy and requiring the EEOC to reinstate FEPAs’ access to employment data.

What Is EEOC Data and Why Is It Important to The States?

Since 1966, spurred by the new legal requirements of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination based on race, color, religion, sex and national origin,the EEOC has required employers with 100 or more employees to report employment data broken down by job category, race, sex and ethnicity on forms called EEO-1s. The intent of the EEO-1 data is to help identify and eradicate workplace discrimination in accordance with Title VII. Specifically, Title VII requires employers to maintain records that can show whether unlawful employment practices have been committed, and to preserve and produce those records as mandated by the EEOC. In further support of that mandate, Title VII also requires that the EEOC maintain open communication and coordinate its efforts with FEPAs. In part, the EEOC must provide FEPAs employment information reported to it if the reporting employer is in the FEPA’s state. In return, FEPAs are bound by confidentiality provisions. Worksharing Agreements between the EEOC and FEPAs generally set forth terms governing the relationship between the two agencies and often require both agencies to make data available to the other if it will assist in carrying out their responsibilities under Title VII.

While there are federal and state laws that protect employees from racial discrimination in the workplace throughout the country, these laws are not always uniform in terms of the severity or pervasive enough of the complained of conduct that constitute an actionable hostile work environment.  Generally speaking, when the racially discriminatory conduct is so severe or pervasive as to change the nature of the job, a worker has grounds to bring a lawsuit for hostile work environment. But what type of conduct meets the standard for a successful claim? More specifically, can a single instance of race-based discrimination create a hostile work environment? The answer may depend on where the suit is filed. For example, in New Jersey, our courts have held that a single racial epithet can constitute a hostile work environment, while other courts outside New Jersey have adopted a strict rule that a single racial epithet, no matter how offensive, can never be enough to constitute a hostile work environment.

IMG_1E2345D1B7BA-1-300x225Earlier this month, a judge in the federal district court for the Northern District of Alabama granted a defendant employer summary judgment against three plaintiff employees’ claims of racial discrimination and hostile work environment. In Bone v. Alliance Investment Co., LLC, Case No. 5:18-cv-01706-LCB (N.D. Ala. Oct. 8, 2020), three African American carpenters sued their employer, claiming that supervisors frequently referred to them as the n-word behind their backs and routinely assigned them more physically demanding work than their white counterparts. One plaintiff was called the n-word directly to his face and others overheard it being used. The company argued that the employees had failed to present evidence that the harassing conduct was severe or pervasive enough to alter the terms or conditions of their employment. Agreeing, the court dismissed the hostile work environment claim with prejudice.Specifically, the court found that in order to establish a hostile work environment in the Eleventh Circuit, the plaintiffs had to show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The test for severe and pervasive conduct is both subjective and objective, meaning that the environment became what a reasonable person would find hostile or abusive as well as one that the victim subjectively perceived to be abusive. The court found that although the behavior was subjectively abusive to plaintiffs, under the totality of the circumstances, a reasonable person would not find the workplace to be hostile. Recognizing the severity of the n-word, the court still held that because the plaintiffs’ job performance was not impacted by it, their claim for hostile work environment failed as a matter of law.

The Bone case is reminiscent of a 2019 case decided by recently appointed Supreme Court Justice, Amy Coney Barrett, when she sat on the U.S. Court of Appeals for the Seventh Circuit. In Smith v. Ill. Dept. of Transportation, 936 F.3d 554 (7thCir. 2019), an employee for the Illinois Department of Transportation was fired after a probationary period of employment during which he allegedly performed quite poorly. The employee sued the Department, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The Circuit Court affirmed the dismissal of his claims for failing to establish a hostile work environment as a matter of law. In his lawsuit, the employee claimed he was treated differently from other employees due to his race and his supervisor called him the n-word during a confrontation. The employee was fired two weeks after the confrontation. Addressing the hostile work environment claim, the Circuit Court found that the majority of the harassment he cited was unconnected to his race and arose from generally unpleasant and profane language that was used routinely toward all employees. The one incident, however, that plainly constituted race-based harassment was when one of his supervisors called him a “stupid ass [n-word]” after finding out that he had filed a complaint with the Equal Employment Opportunity office. The Court noted that “while there is no ‘magic number of slurs’ that indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’” Even still, a plaintiff cannot win a hostile work environment claim simply by proving that the word was said unless he can also show that it altered the conditions of his employment. Unlike in Bone, the Seventh Circuit Court found that the plaintiff failed to prove even his own subjective belief that being called the n-word created a hostile work environment. The court found that because his entire employment had been rocky, and by the time he was called the n-word his termination proceedings were already under way, there was no proof that the racial slur changed the always unpleasant work environment. Because he could not show that the distress he suffered from being called the n-word was distinct from the distress he suffered routinely at work, the plaintiff’s claim for hostile work environment was dismissed.

In the wake of several recent equal pay settlements between female university professors and their employers, the newest litigation of this ilk has popped up in New Jersey. A lawsuit filed under the New Jersey Equal Pay law in state court last week by five women professors at Rutgers University alleges that they are paid significantly less than their male counterparts. Three of the five plaintiffs are world-renowned scholars in their fields, having published multiple books, hundreds of articles, given numerous presentations, and won several awards. In fact, two of the plaintiffs have achieved the most prestigious professional designation at Rutgers, and yet all five are still paid tens of thousands of dollars less than male professors with the same or less impressive credentials.

IMG_5357-300x169One of the plaintiffs, Professor Deepa Kumar, who teaches journalism and media studies and is one of the country’s leading experts on Islamaphobia, was hired in 2004 at a salary that was the same or higher than four white men and women who were hired contemporaneously. However, today, Professor Kumar makes approximately $25,000 less per year than other professors in her department despite multiple attempts to negotiate pay raises. Another plaintiff, Professor Judith Storch, a distinguished professor of nutritional sciences, recently learned that her salary was on average $46,000 lower than all other distinguished professors in biomedical science.

Remarkably, Rutgers already has in place a system of review by which professors may request wage increases in order to advance the goal of pay equity. The plaintiffs in the current lawsuit claim that system is not working. In 2018, the University’s faculty union commissioned a study that showed pay discrepancies between male and female faculty members. Overall, women faculty were paid 7% less than men. Over time, that gap can add up to a substantial amount of lost income. Professor Kumar estimates that she has lost over $300,000 since her employment with Rutgers began. Another litigant against Rutgers, Professor Nancy Wolff claims she lost $500,000. Putting that loss into terms of gender inequity, Professor Wolff pointed out that half million dollars that should have been paid to her was instead used by her employer to pay her white male counterparts at significantly higher rates than she was being paid.

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