It is illegal for your employer to discriminate against you because of your age, color, ethnicity, gender (sex), disability, pregnancy, religion, sexual orientation or certain other characteristics (“protected classes”). Specifically, under New Jersey, New York, and federal laws, employers are prohibited from firing, refusing to hire, demoting, refusing to promote, making compensation decisions, or taking other employment actions against employees based on these protected classes.
The workplace discrimination attorneys at Green Savits, LLC have extensive experience in federal and state trial and appellate courts representing victims of workplace discrimination. As discussed in more detail below, a variety of statutes protect employees from employment discrimination. For example, Title VII of the 1964 Civil Rights Act makes it illegal for employers to discriminate because of sex, race, color, national origin and religion. The federal Age Discrimination in Employment Act (“ADEA”) outlaws workplace discrimination because of age. The Americans with Disabilities Act (“ADA”) makes it illegal for employers to discriminate against employees based on disability and requires employers to provide reasonable accommodations to employees with disabilities if it will enable them to perform the essential functions of the job. The Uniformed Services Employment and Re-employment Rights Act (“USERRA”) protects veterans from discrimination based on their military service.
The attorneys at Green Savits, LLC have extensive experience in federal and state trial and appellate courts representing victims of discrimination. Call (973) 695-7777 or contact our New Jersey employment law firm online for an initial evaluation of your case.
In addition to federal discrimination statutes, New Jersey employees receive broad protection from discrimination under the New Jersey Law Against Discrimination (“NJLAD”), which explicitly prohibits discrimination based on any of the following protected classes:
- Gender Identity or Expression
- Genetic Traits or Information
- Marital, Civil Union, or Domestic Partnership Status
- Military Service
- National Origin
- Sexual Orientation
WHAT IS ILLEGAL DISCRIMINATION?
Discrimination Based on Membership in a Protected Class
Discrimination is only illegal if it is based on membership in a protected class. Although unfair, if your supervisor treats you differently from your co-workers because he/she is related to, friends with, or has a past history with them, he/she is not engaging in illegal conduct. Likewise, it is not discrimination if you are treated differently because your supervisor simply does not like you. However, certain personality traits are considered intimately linked to a specific protected class and discrimination based on these stereotypes may be illegal. For example, discriminating against a woman who is perceived as being too aggressive may be illegal discrimination based on gender if male employees are not punished or ridiculed for similar aggressiveness. Similarly, discriminating against older employees based on the assumption that they will be unable to learn technology without giving them the training or opportunity may be age discrimination.
Adverse Employment Action
Employees have discrimination claims when their employer takes what is called an “adverse employment action” against them based on their membership in one or more protected classes. Termination, demotion, refusal to promote, and reduction in pay or benefits are common examples of adverse employment actions giving rise to claims of discrimination. It is also illegal for a potential employer to refuse to hire an applicant based on his or her membership in a protected class.
While termination or failure to hire are clearly, sufficiently adverse under statute and case law since they result in direct economic harm, many other, less drastic actions may be sufficient to satisfy this element if they affect the “terms, conditions, or privileges of employment.” For example, in certain circumstances, an unfavorable transfer or shift change or a reduction of resources, assignments, or authority based on membership in a protected class may satisfy this element of a discrimination claim.
Employees frequently call our office after quitting their jobs because of discriminatory treatment they faced in the workplace. However, in general, voluntary resignation is not an adverse employment action because it was not an action taken by the employer. In limited circumstances, resignation may be a sufficient adverse employment action if it rises to the level of “constructive discharge.” Constructive discharge is when an employer knowingly permits conditions of employment that are so intolerable that a reasonable person subject to them would feel compelled to resign. However, successful constructive discharge claims are rare because the discriminatory conduct experienced must be extreme and outrageous, the resignation must occur only after every effort is made to remain employed, and the employer must have had knowledge of the discrimination, yet took no action to correct it.
Proving Illegal Discrimination.
There are two ways to prove illegal workplace discrimination: either by direct evidence or by circumstantial evidence. Direct evidence of discrimination exists when an employer actually says that the reason for taking an adverse employment action against their employee is because of the employee’s membership in a protected class. For example, if your employer states (orally or in writing), “I am firing you because you are a woman,” that statement is direct evidence of sex discrimination. Or if your employer tells you that he will not hire you because your disability will raise his insurance premiums, that is direct evidence of disability discrimination. However, employers rarely make statements like these when firing or taking some other employment action against their employees.
Thus, in the vast majority of cases, discrimination must be proven by presenting facts and circumstances that give rise to an inference of discrimination, also known as “circumstantial evidence.” The courts have devised complex evidentiary formulas to prove discrimination circumstantially and you should contact the attorneys at Green Savits to guide you through this complicated process. Simply stated, when an employee shows that the reason given by the employer for the employment action taken against him/her was not true, a jury may find that the employer’s motivation was illegal discrimination. This is known as pretext. For example, when an employer claims that an employee in a protected class was terminated because his/her position was eliminated, but the employee can show that the position was not eliminated at all and that he/she was replaced by someone outside of the protected class, this is pretext and a jury may find that the real reason was discrimination. The attorneys at Green Savits have many years of experience proving such discrimination in these contexts.
PRESERVING YOUR RIGHTS
If you believe you have been illegally discriminated against, you should contact an attorney as soon as possible to assess your claims. However, in order to ensure that you right to pursue court action is preserved, you should be aware of the various administrative requirements and time limitations associated with discrimination cases.
Federal Law: Procedures and Limitations
A New Jersey employee alleging discrimination in violation of Title VII, the ADEA, or the ADA must first file a complaint (called a “charge”) with the United States Equal Employment Opportunity Commission (“EEOC”). This charge must be filed within 300 days of the adverse employment action upon which the discrimination claims are based. After receiving the charge, the EEOC will investigate, possibly mediate, and make a determination on the merits of the charge. If the EEOC is unable to conclude that there is reasonable cause to believe that discrimination occurred, it sends a notice to the employee dismissing the charge. Upon receipt of this notice, commonly referred to as a “right to sue letter,” the employee has 90 days to file a lawsuit in federal court.
New Jersey Law Against Discrimination: Procedures and Limitations
A current or former New Jersey employee who believes that he/she was discriminated against may bring a lawsuit against the discriminating employer under the New Jersey Law Against Discrimination. The statute of limitations for filing such a lawsuit is two (2) years from the time that the discriminatory action took effect.
A discrimination victim may also file an administrative charge of discrimination with the New Jersey Division on Civil Rights (“DCR”), but must do so within 180 days after the last act of discrimination. However, filing with the DCR is not required before employees pursue their claims in state court and it is our firm’s collective experience that vindicating rights through the state court system rather than in the DCR is the better avenue for success.
New York Law: Procedures and Limitations
Many New Jersey residents commute to work in New York City and/or State. If an employee is working in New York City and is alleging workplace discrimination, she/he may file a lawsuit in New York Supreme Court under the New York City Human Rights Law and has three (3) years to do so. If a discrimination victim works in New York State (but outside New York City), he/she may file suit under the New York State Human Rights Law. As with the New York City Human Rights Law, employees have three (3) years to file a claim in the New York Supreme Court under the New York State Human Rights Law.
In addition to state court remedies, New York-based employees alleging discrimination may file an administrative charge of discrimination with the New York Division of Human Rights (“DHR”). Employees have 1 year from the date of the discriminatory act to file with the DHR. The DHR will investigate the claims and determine if there is probable cause to believe illegal discrimination occurred. If the DHR does not find probable cause, the complaining employee has just 60 days to file an appeal in New York Supreme Court. However, filing with the DHR is not required before employees pursue their discrimination claims in state court. All the attorneys at Green Savits are also admitted to practice in New York State, can prosecute cases in the New York state and federal courts, and would happily guide you through the various options you have in pursuing remedy for discrimination.
MONETARY DAMAGES FOR DISCRIMINATION
Under both the New Jersey law and the New York City law, a workplace discrimination victim may be entitled to an award of lost back and front wages and benefits, damages for emotional distress or personal injuries, punitive damages if the discrimination was egregious, and reimbursement of attorneys’ fees and costs of suit. Under New York state law, a discrimination victim may only be entitled to lost earnings and benefits and emotional distress damages, but cannot be awarded punitive damages or reimbursement for attorneys’ fees.
Under Title VII and the ADA, a discrimination victim may be awarded lost earnings and benefits as well as emotional distress and punitive damages (which are capped depending in the size of the employer). Under the ADEA, an age discrimination victim may be awarded lost earnings and benefits, but no emotional distress or personal injury damages. Punitive damages are also not allowed under the ADEA. However, if a jury finds that the employer knew that its actions violated the ADEA, it may award double the back pay award of earnings and benefits.
DISCLAIMER: While this information provides an overview of rights and processes under discrimination law, there are many legal intricacies and strategic decisions that must be made in pursuing a legal claim. Contact an attorney from Green Savits, LLC at (973) 695-7777 for a full assessment of your potential claims.