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Articles Posted in race discrimination

Earlier this week, New Jersey’s Assembly and Senate passed a ban on discrimination associated with hair. Discrimination based on hair has been popping up in courtrooms and legislatures across the country. Once Governor Murphy signs off, it will be unlawful to discriminate based upon hair.

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In several states, bills have been proposed to increase protections from hair based discrimination. The New Jersey State Assembly Labor Committee approved a bill this past summer to ban discrimination based upon hairstyles and textures that are traditionally associated with race and is considered a form of race discrimination. The bill was prompted by a December 2018 incident involving a New Jersey high school wrestler forced by a referee to cut his hair, styled in locs, or forfeit the match. The bill was proposed by Assemblywoman Angela McKnight, Hudson County’s representative, following the outrage surrounding the wrestler’s forced hair cut—performed publicly by the referee, in front of spectators. The bill, originally introduced this summer that was recently passed, amends the New Jersey Law Against Discrimination to reflect that “race” is inclusive of traits “historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” “Protective hair styles includes, but is not limited to, such hairstyles as braids, locks, and twists.”

The New Jersey Law Against Discrimination prohibits employers and places of public accommodation from discriminating against employees and other persons.  While race has long been recognized as a protected class of persons protected by the state discrimination law, the New Jersey law will specifically prohibit discrimination based upon hair, if the governor signs it into law.

On the morning of July 10, 2019, New York State Governor Andrew Cuomo signed new legislation into law providing protections for equal pay for women and increasing protections against race and gender based employment discrimination. The legislation was signed at the ticker-tape parade for the United States Women’s National Soccer Team, who won the World Cup on July 7th and have made headlines in recent months regarding gender-based pay disparity. The passage of these bills was a symbolic action of solidarity between New York State and the U.S. Women’s National Team, who filed an equal pay lawsuit in Federal Court earlier this year. After signing the legislation into law, Governor Cuomo stated, “We say to the U.S. Soccer League, and we say to FIFA, if you don’t pay women what you pay men, then you have no business in the state of New York.”

These three bills, signed this past summer, are part of a larger effort by the New York State to provide greater protections to employees in the state, aiming to prohibit employment discrimination based on gender and race. These laws will hopefully mark the development of a more employee-friendly workplace environment within the state. As New York is the third largest contributing state to America’s national GDP, such an improvement would be significant. New Jersey has also adopted significant employee-friendly legislation in the past two (2) years, including the New Jersey Equal Pay Act, the S121 Non-Disclosure Bill, Paid Sick Leave and amendments to the New Jersey Wage Payment and New Jersey Wage and Hour law. Following these enactments, New York’s similar enactments will serve to further enhance the protections for employees within both states, and across the region.

The first of two bills Governor Cuomo signed on July 10, Senate Bill 5248, prohibits wage differentials based on protected class status. It requires equal pay for substantially similar work when performed under similar working conditions. Similar to the New Jersey Equal Pay Act, the bill only allows for a differential rate of pay when it is based on a seniority or merit system, a system that measures earnings by quantity or quality, or a bona fide factor consistent with business necessity. Additionally, the bill lowers the burden of proof for a person claiming discrimination and provides a civil penalty for violations of the act. The stated purpose of the law is to prevent irrelevant factors – such as gender – from influencing employers in their salary distribution decisions. The passage of this law came after a wave of equal pay lawsuits have shaken governments across the United States. The bill will go into effect 90 days after its enactment.

Last month New York City took action to combat an often-overlooked form of race discrimination involving employee’s hair.  In February 2019, the New York City Commission on Human Rights (the “Commission”) published new guidance that explains that employers (as well as housing providers and providers of public accommodations) can no longer institute policies or practices that discriminate against people on the basis of their natural hair texture or their choice to wear a hairstyle commonly associated with African Americans, such as an afro or dreadlocks.  According to this new guidance, the Commission views such policies and practices as violative of the New York City Human Rights Law (the “NYCHRL”), announcing that in the Commission’s view, “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.

Discrimination based on hairstyles is an issue that courts across the country have grappled with over the years, with generally employer-friendly results. Courts have been fairly consistent in finding that where a person’s hairstyle is tied to their faith, employers cannot restrict their right to express their faith through their chosen hairstyle. On the other hand, where the person’s hairstyle is tied to their cultural identity and heritage, courts have not been so kind.  For the most part, if an employer implemented a race-neutral policy banning hairstyles associated with Black people, courts have not found discrimination. Similarly, race-neutral policies restricting “unkempt” or “messy” hairstyles have generally gained approval from the courts.

For the most part, in order to prevail, a plaintiff had to show that they were specifically targeted in some way, or that the employer’s policy was not applied neutrally.  In other words, employees had to demonstrate that the employer’s defense – that the employee failed to comply with a race-neutral employee grooming policy – was pretextual and that the employer’s true motive was discriminatory.  Proving pretext can be extremely difficult, which explains why most employers have succeeded when their grooming policies have been challenged as racially discriminatory.

ESPN, Sports Illustrated, Good Morning America and probably even your own Facebook page, have been flooded with varying opinions on the Miami bullying/harassment scandal. This blog entry is written by our New Jersey Employment Lawyers to analyze the facts, as reported, to determine whether a hostile work environment existed that would be in violation of the New Jersey Law Against Discrimination.

For those who have been living under a rock for the week, Miami Dolphins offensive lineman Jonathan Martin left his employment with the Miami Dolphins as a result of, at least in part, constant harassment and bullying directed at him from his teammates. It has been reported that Mr. Martin checked himself into a hospital as a result of suffering from emotional distress caused by the harassment. One teammate in particular, Richie Incognito, has been suspended indefinitely for his role in the harassment and bullying. NFL Commissioner Roger Goodell has appointed the prominent attorney, Ted Wells, to conduct an independent investigation into allegations of harassment and bullying within the Miami Dolphins.

Based upon the allegations that have reported, Mr. Wells’ investigation should reveal that Jonathan Martin was subjected to a hostile work environment that would be in violation of New Jersey law. The New Jersey Law Against Discrimination makes it unlawful to discriminate against an employee on the basis of protected characteristics, which include race, color, disability and sexual orientation. In other words, the discrimination must be based upon one of these protected characteristics in order for the harassment to be against the law. In the landmark case of Lehman v. Toy ‘R’ Us, Inc. 132 N.J. 587 (1993), the New Jersey Supreme Court defined a hostile work environment based upon sexual harassment as discriminatory conduct that a reasonable person of the same sex in the plaintiff’s position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment. The Lehman decision held that New Jersey employers must maintain an effective policy against unlawful harassment/discrimination. An effective policy requires, inter alia, that employers investigate complaints of harassment promptly, thoroughly and completely. All complaints of sexual harassment and other forms of discrimination must be fully investigated.

The New Jersey Appellate Division recently affirmed a trial court’s judgment awarding plaintiff, Mr. Anthony Onuoha, a total of $1,092,424.25 in damages, attorneys’ fees and costs on his claim for discrimination on the basis of race and retaliatory discharge in violation of the New Jersey Law Against Discrimination (“NJLAD”).

In this case, Onuoha v. Roche Molecular Systems, Inc., Mr. Onuoha began his employment with Roche Molecular Systems (“Roche”) in February 2004 as a scientist, validating Roche diagnostic test kits used to screen blood for infectious diseases. Mr. Onuoha is an African-American male and was originally hired at Roche through a staffing agency as a temporary employee. In June 2004, Mr. Onuoha applied for an open position at Roche as a senior scientist. Mr. Onuoha accepted the position at the $75k annual salary and began working with the production validation team. He was the only African American working within that group.

In February 2005, Mr. Onuoha received a raise of 4.75% due to a rating of “3” on his annual performance review, which signified he had fully performed his employment objectives. Soon thereafter, Mr. Onuoha discovered that employees within the production validation team hired after him were being paid higher salaries and that new hires at his level were usually paid $88,500. Based on this information, Mr. Onuoha complained about his salary and requested a raise. His request was subsequently denied.

The United States District Court for the District of New Jersey recently denied the parties cross-motions for summary judgment in the case Reginald L. Cannon v. Bradbury Burial Vault Co., Inc. In this case, the plaintiff, Mr. Cannon, alleges that he was subjected to race discrimination and a hostile work environment discrimination.

Mr. Cannon filed partial summary judgment for racial harassment in violation of Title VII, 42. U.S.C. 2000e, et. seq. as a result of being subjected to a racially hostile work environment at his employment with Bradbury Burial. The defendant, Bradbury Burial, opposed Mr. Cannon’s motion for partial summary judgment m and cross-moved for summary judgment claiming that Mr. Cannon failed to show that the racial discrimination complained of was pervasive and severe and that Bradbury Burial has no respondeat superior liability in the case.

Mr. Cannon’s allegations include numerous events of race discrimination taking place from 2004 through 2009. The incidents complained of primarily involved two co-workers of Mr. Cannon, who called Mr. Cannon racially derogatory names such as “black bastard,” “jigaboo,” “dumb black people” and “nigger”. Mr. Cannon does not allege that any managers or supervisors engaged in any racially harassing conduct. In 2006, Mr. Cannon and one of the co-workers had a physical altercation as a result of the co-worker stating to Mr. Cannon, “f*ck you ‘nigger’. It was also alleged that Mr. Cannon referred to the co-worker as a “spic”. This incident resulted in Mr. Cannon and the co-worker being issued warnings from their supervisor. In 2007, Mr. Cannon complained to his supervisors after learning that co-workers had referred to him as a “coon.” In the summer of 2007, Mr. Cannon got into another physical altercation with a co-worker who called Mr. Cannon a ‘nigger’ during the altercation. In 2009, Mr. Cannon complained about co-workers referring to hip hop music as “jungle music”.