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Discrimination in the Workplace

 

Despite the best efforts of legislators, discrimination in the workplace remains a pervasive problem in our society. If an individual has ever been discriminated against, they know all too well the sense of outrage, shame, and sadness that can result. When employment discrimination causes a worker to lose their job or miss out on a promotion, they can channel those hurt feelings into action. There are various state and federal laws that protect workers from various forms of discrimination.

The New Jersey Law Against Discrimination

The New Jersey Law Against Discrimination (NJLAD) makes New Jersey one of the states with the highest level of protection against workplace discrimination. The law provides relief for anyone who experienced discrimination based on:

  • Race
  • Color
  • Creed
  • National origin
  • Nationality
  • Sex
  • Age
  • Ancestry
  • Disability
  • Marital, domestic partnership or civil union status
  • Gender identity or expression
  • Sexual orientation
  • Military service
  • Genetic information
  • Atypical hereditary cellular or blood trait

While discrimination is unfair and violates state and federal laws, life is not always fair. There are times when individuals are not victims of discrimination, even though what has happened may not be to their liking. We urge victims to reach out to us to determine what has occurred, to ensure that their case has merit, and to help them understand the legal process.

At Sidney L. Gold Associates, P.C., we work with clients who have experienced discrimination in the workplace. Speak with an employment lawyer in New Jersey to learn what can be done to help. Victims may have more than one claim due to various forms of discrimination. We will review each case, ensure that victims receive the representation they need, and guide them through this difficult time. Discrimination in the workplace may include the following:

Age Discrimination: With the passage of the Age Discrimination in Employment Act (ADEA) in 1967, Congress made it illegal for companies with a workforce of 20 or more employees to discriminate against employees aged 40 years and older.  Employers must give all prospective workers equal consideration when making decisions on hiring, firing, promotions, opportunities for advancement and pay under this federal statute. The NJLAD provides even broader coverage, with no age threshold that must be reached before a violation can be alleged.

In order to prevail on a claim of age discrimination, an employee should be able to establish several elements. First and foremost, victims must prove that they were the recipient of an adverse employment action. Additionally, those alleging age discrimination must demonstrate differential, adverse treatment for older employees versus younger employees at their place of work. Older employees should also be aware of signs of age discrimination, which may include:

  • Being offered buyouts or forced into early retirement
  • Being forced into duties older workers would rather not do; this may include asking older workers to do more work than they can handle or asking them to do jobs for which they are clearly overqualified
  • Employers claiming older workers are too expensive, or workers may be told that they make as much as they possibly can in that position
  • Not receiving promotions or losing out on promotions to younger workers
  • Performance reviews dropping for no reason
  • Hearing comments about one’s age

Disability Discrimination: In New Jersey, employers are barred from withholding job opportunities from disabled individuals, or from withholding opportunities based upon a disability an employee might have had in the past, such as cancer that is now in remission. New Jersey defines disabled broadly, with legally recognized disabilities ranging from epilepsy to psychological conditions, and even certain hereditary blood traits. Recognized disabilities include:

  • AIDS or symptoms of AIDS
  • Alcoholism or addiction
  • Asthma
  • Blindness or near blindness
  • Cancer
  • Cerebral palsy and its symptoms
  • Depression
  • Diabetes
  • Epilepsy
  • Deafness or hearing impairments
  • Speech impairments or impediments
  • Heart Disease
  • Frequent or chronic migraines
  • Multiple sclerosis
  • Muscular dystrophy
  • Orthopedic and/or movement issues
  • Paralysis
  • Complications from pregnancy
  • Disorders of the thyroid
  • Tuberculosis
  • Amputation

No matter the disability, disabled employees in New Jersey have the right to be trained, promoted, and receive all other work benefits as their non-disabled peers so long as their disability will not prevent them from performing the essential duties of the job. An employer may also deny a position to a disabled person when allowing them to perform the duties of the job if it would put others at risk of suffering harm. Keep in mind that some conditions are not covered, such as:

  • Cold and flu symptoms
  • Common joint injuries that heal properly
  • Non-chronic gastrointestinal issues
  • Broken bones that heal properly
  • Gambling addictions
  • Pregnancy
  • Age
  • Lack of formal education

Disabled individuals receive added protection via the Americans with Disabilities Act (ADA). Under that ADA, disability discrimination occurs whenever an otherwise qualified individual is treated unfavorably because of their disability.  We will work with medical professionals to ensure that each case is handled properly. We can show that an individual’s disability is a true impediment to their work performance and that their employer’s actions effectively barred them from doing their job.

Additionally, the ADA states that disability discrimination can take place even when the employee or job applicant’s physical or mental impairment is temporary or minor. ADA violations may also occur when an employer does not offer reasonable accommodations for the disability. Signs of disability discrimination include:

  • Not being hired specifically because of a disability
  • Being cyber-bullied by an employer because of a disability
  • Being publicly shamed because of a disability
  • Being verbally abused by an employer because of a disability
  • Being threatened at work because of a disability
  • Being taken off projects because of a disability
  • Not being promoted or given raises because of a disability

Gender Discrimination: Despite great strides being made over the last several decades, sex discrimination is still pervasive in many workplaces. Various federal and state laws, including the NJLAD, prohibit employers from treating a current or prospective employee unfavorably on the basis of gender. Unfair treatment includes refusing to hire, denying promotions or other benefits, or paying an employee less because of their gender.

In 2018, the NJLAD was amended to include the Diane B. Allen Equal Pay Act, which bans pay discrimination on the basis of an employee’s inclusion in any class protected by the NJLAD. The Act also prohibits employers from retaliating against employees who file wage discrimination claims under the NJLAD or the Equal Pay Act. Employers who violate these rules may be subject to compensatory damages and in some cases, punitive damages. Gender discrimination may also result in sexual harassment or a hostile work environment. These claims are often separate from charges of workplace discrimination.

Marital Status Discrimination: One’s marital status, civil union, or domestic partnership status cannot be used as a basis for their hiring or retention of employment. Employers may not hire men or women because they are married, or an employer may claim that an individual is not hirable because they are somehow violating their personal code of ethics. Some employers may go even further to claim that an individual will miss time at work because they will become pregnant. This behavior may also fall under pregnancy discrimination.

National Origin Discrimination: Outlawed by Title VII of the Civil Rights Act of 1964, employers in companies with a workforce of 15 or more employees are forbidden from making employment decisions based upon the national origin of an employee or prospective employee. The statute extends protection to workers who have been discriminated against based upon the national origin of their spouse, or discriminated against because of their association with a group, church, temple, or mosque. Title VII additionally requires employers to take steps to ensure a respectful, harassment-free work environment for all employees, regardless of their national origin.

Pregnancy Discrimination: In an amendment to the Civil Rights Act, Congress passed the Pregnancy Discrimination Act, which forbids employers from discriminating on the basis of pregnancy, childbirth, or any related medical condition. Pursuant to the law, a woman cannot be passed over for a promotion or new job because she is pregnant or intends to become pregnant, as long as her condition does not prevent her from performing the essential duties of her job.  Additionally, the Pregnancy Discrimination Act ensures equal opportunity for advancement, training, benefits, and raises for pregnant employees.

The NJLAD was amended in 2014 to specifically include pregnancy as a condition upon which employers may not discriminate. The NJLAD further requires employers to offer pregnant employees certain accommodations when recommended by a physician, including increased opportunities for bathroom breaks, water breaks, assistance with manual labor, modified work schedules, transfers to less strenuous or dangerous work, and periodic rest. The NJLAD specifies that accommodations need not be made when they create undue hardship for an employer. Typical signs of pregnancy discrimination include:

  • Being passed over for promotions or raises
  • Being excluded from meetings which an employee would have normally attended
  • Exceptionally poor performance reviews that have little to no merit
  • Being suddenly demoted or terminated
  • Hearing comments about how long an employee will miss work because of their pregnancy
  • Hearing comments about how a child inhibits one’s work performance

Race Discrimination: Employers may not mistreat a job applicant or employee because of their race, nor because of the color of their skin pursuant to the Civil Rights Act. Such mistreatment includes, but is not limited to, failure to promote, failure to hire, failure to fairly compensate, or even the adoption of company-wide policies that adversely affect a segment of the workforce, solely because of their race. Racial discrimination can occur in the following instances:

  • A worker may be stereotyped or hear their superiors use stereotypes to make employment decisions
  • A worker may experience hostility in the workplace because of their race
  • An employer may offer much harsher criticism to a worker than they do for other employees
  • A worker may be passed over for promotions and raises in favor of white employees

Employers may also use medical records or genetic information to make employment decisions. For example, if an employee used an online genetic testing site, an employer might search that information and discriminate against them because they are partly another race. There are also blood traits that may be used against an employee, such as their status within a Native American tribe. The Civil Rights Division has jurisdiction over cases involving the rights of Native Americans and Alaskan natives, and discrimination because of their national origin or their perceived national origin is strictly prohibited.

The New Jersey Division on Civil Rights handles complaints of race discrimination as long as the complaint is made within 180-days of an alleged violation. If the Division finds probable cause, a victim and their employer will proceed to conciliation. When conciliation is unsuccessful, allegations of race discrimination are referred to an Administrative Law Judge for a hearing.

Employers who are found to be in violation of the NJLAD can be penalized $10,000 for a first offense, $25,000 for a second offense, and $50,000 for a third offense. Additionally, an employer can be ordered to pay the victim back pay, damages and to reinstate the employee to their former position. When an allegation of race discrimination is made more than 180 days after the event, a victim has up to two years to file a lawsuit in court.

Religious Discrimination: The federal government has outlawed the practice of treating employees and prospective employees differently based upon their religion, their perceived religion, the religion of their spouse, or their affiliation with a certain religious group or organization. Additionally, the Civil Rights Act requires employers to make reasonable accommodations to employees with regard to their religious beliefs or practices. Employers are barred from imposing policies that negatively affect employees in light of their religion, such as a ban on religious head coverings or requiring women to wear pants when it is forbidden by their faith. Exceptions to these rules can be made when an employer is able to demonstrate that honoring the accommodations or abandoning the allegedly discriminatory policy would present an undue hardship.

The NJLAD expands the federal ban on religious discrimination to require employers to accommodate the sincerely held religious observance or practice of their employees. To that end, employers must offer members of their workforce time off to observe holy days. As with federal law, New Jersey offers employers an exception if the accommodation would create an undue hardship, but employers must first make a “bona fide effort” to honor the request. Employers may also demand that employees that are taking time off for religious purposes make up that time at a later date, or the time off may be treated as leave without pay.

These protections are also in place for anyone who is perceived to be a member of a certain religion. For example, men of the Sikh faith have rather long beards and wear a special turban to contain their hair. The same could be said if someone wears a crucifix icon. An employer may not want to hire Catholics, Christians, or someone of a certain denomination because of their perceived religious ties. Any form of religious discrimination is illegal.

Protections for Transgender People: In a 2012 ruling, the U.S. Equal Employment Opportunity Commission (EEOC), which is charged with enforcing federal employment discrimination laws, ruled that employers may not withhold jobs, raises, or advancement opportunities within their company because an employee is transgender. Discriminating against an employee because they are transgender or because they do not identify as either gender constitutes discrimination on the basis of sex under Title VII of the Civil Rights Act. The EEOC investigates allegations of transgender discrimination, or discrimination on the basis of gender identity and gender transition.

In 2006, the New Jersey state legislature included gender identity and expression as a protected class under the NJLAD. Employers face fines and even jail time by failing to notify transgender workers of their rights. In addition, the NJLAD also covers employees who do not appear traditionally feminine or masculine. If a criminal case arises from a complaint, we will assist victims if they are questioned by regulators or the local authorities.

While victims may believe that transgender protections serve only those who currently identify as transgender, those protections are provided for anyone who changes their gender expression while holding a job. If an employer shows signs of discrimination, such as demotions, poor job reviews, lack of advancement opportunity, and even verbal harassment while an employee is transitioning genders, they are protected under the law.

LGBT Discrimination: Similar to the treatment of transgender individuals, the NJLAD forbids employers from discriminating against employees based upon their perceived sexual orientation or gender identity. When making employment decisions, employers may not factor in an employee’s sexual orientation or gender identity. Violators of the NJLAD’s sexual orientation and gender identity provision face stiff fines.

Military Service: It is illegal under New Jersey law to make employment decisions based on one’s military status or military service. Employers may offer preferential treatment to veterans in lieu of hiring other candidates. Other businesses may refuse to hire veterans or those serving in the National Guard.

What is a Hostile Work Environment?

Many of the forms of discrimination listed above will create a hostile work environment for the employee. Victims may be unsure of the motivation behind an employer’s discrimination, but they are bound by federal and state law to provide a harmonious work environment for everyone. Being a member of a protected class above will likely be the reason for any issues an employee has. If victims notice the following signs of a hostile work environment, reach out to us for assistance as soon as possible:

  • Any inappropriate behavior in the office based on one’s race, religion, national origin, military service, gender, gender expression, or other class that is protected under federal and state law
  • Inappropriate behavior that is pervasive throughout the office or company
  • Any behavior is so distressing that the employee cannot stand to be at work, or they dread going to work
  • A reasonable person would be appalled by the behavior the employee is subjected to
  • An employer is not investigating or flatly ignoring this behavior

How Do I Recover Compensation in These Cases?

Compensation for workplace discrimination is often left up to the jury if a victim goes to trial. In the simplest of cases, an employee may be given the promotion they deserved, the pay raise they deserved, or they might be offered back pay because they found another job. When we argue a case before a jury, we are asking the jury to determine how the victim was harmed by the senseless discrimination that occurred in the workplace. The jury has discretion to award the victim any amount for their:

  • Pain and suffering
  • Distress over the situation
  • Embarrassment
  • Humiliation
  • Psychological damage

We will work with medical professionals in certain cases to show that the discrimination experienced caused severe medical or emotional harm. The jury may also award punitive damages, which are designed to punish the defendant for their wrongdoing. A victim may also request economic damages that are specific to their job loss, demotion, or the discrimination itself. Damages may include any extra pay the employee would have earned had they been allowed to continue growing within the company, as well as pension benefits, or pension contributions that would have been made by the employer.

Cherry Hill Employment Lawyers at Sidney L. Gold & Associates, P.C. Represent Victims of Employment Discrimination

Employers can be held accountable under the law for instituting discriminatory policies and practices in the workplace. If you or a loved one has been discriminated against in the workplace, the Cherry Hill employment lawyers at Sidney L. Gold & Associates, P.C. can help. We will fight to obtain the compensation and justice you deserve. Call us at 215-569-1999 today or contact us online to schedule a free consultation. Located in Pennsauken, New Jersey, we represent clients throughout South Jersey, including Cherry Hill, Haddonfield, Marlton, Moorestown, and Mount Laurel.

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