Legal Issues and Recent Developments, Published by the Lurie Law Firm LLC

New Jersey Law Against Discrimination

Overview of the New Jersey Law Against Discrimination

The New Jersey Law Against Discrimination (NJLAD), which was first enacted in 1945, prohibits discrimination on the basis of age, race, color, religion, national original, gender, ancestry, sexual orientation, services in the armed forces, atypical hereditary cellular or blood trait, marital status, domestic partnership status and civil union status.

The NJLAD prohibits discrimination based on these protects categories in connection with employment, real estate, extension of credit, decision to conduct business and letters of credit.  Following is more detailed information regarding employment discrimination.

Protected Individuals

The NJLAD protects individuals who are seeking employment, as well as those who are already employed, in New Jersey from discrimination based on a protected status. The NJLAD employment provisions do not, however, protect independent contractors.  In deciding whether or not an individual is an “employee” or an “independent contractor,” courts look at the economic realities of the relationship, particularly whether or not the employer controls the “means and manner” of the individual’s performance, including the following factors:

  • the kind of occupation, with reference to whether the work is usually done under a supervisor’s direction or is done by a specialist without supervision
  • the degree of skill required in the particular occupation
  • whether the “employer” or the individual furnishes the equipment used and the place of work
  • the length of time during which the individual has worked
  • the method of payment, whether by time or by the project
  • the manner in which the relationship can be terminated, including whether the termination has to be mutual, with or without notice and with or without explanation
  • whether annual leave is provided
  • whether the worker accrues retirement benefits
  • whether the “employer” pays social security taxes
  • the intention of the parties

Employer

The NJLAD prohibits unlawful employment discrimination by employers, labor organizations and employment agencies.  The NJLAD applies to both private and public employers. It also applies to all employers, regardless of the number of employees; in this regard, the NJLAD is broader than federal laws, including Title VII and the Age Discrimination in Employment Act, which do not apply to smaller employers.

Supervisory employees are not considered “employers” under the NJLAD.  Supervisors and co-workers may, however, be found liable under a separate provision,which prohibits “aiding and abetting” discrimination.

Aiding and Abetting

The NJLAD prohibits any person, whether employer or employee, from aiding, abetting, inciting, compelling or coercing discriminatory actions. In determining whether a supervisor or co-worker aided and abetted discriminatory decisions or actions, the supervisor or co-worker must have given substantial assistance or encouragement to the unlawful conduct; mere inaction is usually not sufficient to find liability.

Our courts have held:

In order to hold an employee liable as an aider or abettor, a plaintiff must show that (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as a part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must knowingly and substantially assist the principal violation.

Pre-Employment Discrimination

The NJLAD expressly states that “All persons shall have the opportunity to obtain employment … without discrimination because of race, creed, color, national origin, ancestry, age, martial status, affectional or sexual orientation, familial status [or] sex…. This opportunity is recognized as and declared to be a civil right.”  To further this right, the NJLAD expressly forbids employers and employment agencies from asking pre-employment questions which directly, or indirectly, expresses any limitation or discrimination based on race, creed, color, national origin, ancestry, age, marital status, affection or sexual orientation or sex, or service in the Armed forces, unless based upon a bona fide occupational qualification.

Prospective employers may not ask or elicit information about an applicant’s disability or health condition that is not reasonably related to an applicant’s ability to perform the essential functions of the job. Employment agencies and prospective employers may ask these questions only if the applicant is given an accurate description of the job duties and is asked to provide information regarding reasonable accommodations, if necessary, so that the applicant can perform those essential functions.  Any information that the employer obtains about an applicant’s disability must be kept confidential, on separate forms from the rest of the applicant information, and used solely for complying with its obligation to provide reasonable accommodations, and cannot be used for any unlawful discriminatory action.  Employers may make a conditional offer of employment, subject to a medical examination or drug test, but only if all offerees are subject to the examination, and the examinations results are used to disqualify offerees only when a discovered disability would preclude the employee from performing the job safely and satisfactorily, even with a reasonable accommodation.

Discrimination During Employment

1. Terms and Conditions of Employment.

The NJLAD prohibits unlawful discrimination in connection with the “terms, conditions or privileges of employment” including decisions regarding compensation, promotion, transfers and training and apprecentice opportunities.

2. Reasonable Accommodations

The NJLAD also requires employers to make reasonable accommodations for employees’ disabilities and sincerely held religious beliefs.  An employee’s request for an accommodation triggers an employer’s obligation to engage in an interactive process to try to find a reasonable accommodation that would permit the employee to satisfactorily perform the essential functions of the job. In determining whether an accommodation is reasonable or would impose an undue hardship on the employer, courts look at each situation on a case by case basis, applying various factors, including:

  • the overall size of the business in terms of employees, number and type of facilities and budget
  • the nature of the operations, including composition and structure of the workforce
  • nature and cost of the required accommodation
  • the extent to which the accommodation would require waiver of an essential function of the job, as opposed to a tangential job responsibility.

Depending upon the nature of the disability, the essential functions of the job, the employer’s size and resources, and modifications to the workplace, reasonable accommodations may include:

  • changes to the physical layout of the facilities to make them accessible to disabled individuals
  • job restructuring, including part-time work or modified work schedules
  • acquisition or modification of equipment
  • job reassignmentsleaves of absence

3. Harassment

While we tend to think of sexual harassment, the LAD prohibits harassment on the basis of any protected category. Put simply, employees are entitled to a workplace that is free of discriminatory harassment, hostility, intimidation, ridicule or insult based on sex, age, race, religion, disability, color or any other protected status.

a. Hostile Work Environment

Our courts have recognized that the workplace and supervisors can sometimes be demanding, unpleasant and nasty, and they will not act as a “super personnel committee” telling employers and supervisors how to manage their employees. Employers are prohibited, however, from creating and permitting an environment that is permeated with hostile attitude, comments and actions based on sex, age, race, disability, or other categories.

Regarding sexual harassment, the New Jersey Supreme Court has held that:

For the purposes of establishing and examining a cause of action [for hostile work environment], the test can be broken down into four prongs: the complained-of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. However, the second, third and fourth prongs, while separable to some extent, are interdependent. One cannot inquire whether the alleged conduct was”severe or pervasive” without knowing how severe or pervasive it must be. The answer to that question lies in the other prongs: the conduct must be severe or pervasive enough to make a reasonable woman believe that the conditions of employment are altered and her working environment is hostile.

Employers may be liable for harassment by supervisors, co-workers and, in some cases, third parties, if they knew or should have known about the conduct, had control over the harasser, and failed to take prompt and appropriate remedial action. The employer may be liable for conduct by supervisors if the employer intended the conduct or it was negligent or reckless in allowing the conduct to occur. In this regard, failure to establish, publicize andor enforce an anti-harassment policy may be regarded as negligence. In addition, an employer may be liable for punitive damages if upper management participated in the harassment or was wilfully indifferent to it.

b. Quid Pro Quo Harassment

“Quid pro quo"” harassment occurs when an employee is required, implicitly or explicitly, to submit to requests for sexual favors as a term or condition of their employment, or where submission to, or rejection of, such conduct is used as a basis for employment decisions regarding that employee.

Termination of Employment

Employers are prohibited from firing employees based on race, creed, color, national origin, ancestry, age, martial status, affectional or sexual orientation, familial status or sex. The NJLAD also prohibits retaliation against anyone who has complained of discrimination or harassment. Further, as a general rule, the NJLAD prohibits mandatory retirement, unless it is “justified by lawful considerations other than age.” Employers cannot get around this prohibition by including an age requirement in retirement, pension, employee benefit or insurance plans or programs. There are a few narrow exceptions, however, where mandatory retirement is permitted.  For example, public or private institutions of higher learning can, at their discretion, require tenured professors to retire at 70. New Jersey Supreme Court justices, and Superior Court and Tax Court Judges re required to retire at age 70, and members of police and fire departments are also subject to mandatory retirement ages.

The NJLAD also protects employees who are “constructively discharged.” A “constructive discharge” occurs where the employer knowingly allows working conditions are so intolerable that a reasonable person would feel that they have to quit.  For example, a lengthy period of intolerable and egregious sexual harassment might support a constructive discharge claim.

Remedies

Unlike federal statutes (such as Title VII and the Age Discrimination in Employment Act), an employee does not need to file an administrative claim with the Division on Civil Rights or the Equal Employment Opportunity Commission. Instead, an employee may file a complaint directly with the Superior Court.

The NJLAD permits parties to recover back pay, front pay, emotional distress damages, attorneys’ fees and, where appropriate, punitive damages. The NJLAD also permits equitable relief including, where appropriate, reinstatement.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

The Law Office of Mark D Lurie LLC represents employers and employees throughout Northern New Jersey and Central New Jersey, Montclair, Livingston, Caldwell, West Orange, Newark, Morristown, Hackensack, Newark, Elizabeth, New Brunswick, Paterson, Jersey City, Ridgewood, Wayne, Clifton, Passaic, Union City, Bayonne, Teaneck, Irvington, Union, Edison, Piscataway, Lawrenceville, Princeton, Hoboken, East Hanover, Saddlebrook, Parsippany, Roseland and Woodbridge; as well as the counties of Essex, Bergen, Passaic, Middlesex, Morris, Union, Sussex, Warren, Hudson and Mercer.

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