This post was written by: Francine Foner, Esq.
The New Jersey Law Against Discrimination (“LAD”), is intended to prohibit discrimination on the basis of several protected categories, including age. owever, the LAD contains an exception which permits employers to discriminate against individuals over 70. The “over 70 exception” to the LAD provides that, “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age….”
But should this exception permit employers to refuse to renew the contracts of employees based upon their being over 70? Not according to the New Jersey Supreme Court’s recent holding in Nini v. Mercer County Community College (2010).
Rose Nini worked for Mercer Community College continuously for twenty-six years under a series of contracts. Her last contract was not renewed and she sued the school for age discrimination. The school countered that since Nini was over 70 she was not covered by the LAD because of its “over 70 exception.” Nini lost in the lower courts, but prevailed in the New Jersey Supreme Court. The Nini majority found that the “over 70 exception” applies to initial hiring decisions, but not to contract renewals. The Nini Court reasoned that a contract renewal amounts to the same thing as a termination, and termination based upon age is prohibited by the LAD’s broad remedial purpose and strong public policy of eradicating discrimination in the workplace.
The Supreme Court also observed that it would create a loophole in the LAD’s protections by permitting employers who want to terminate their aging employees to simply put them under contract and then not renew the contract. The Nini Court further noted that it would also have the absurd result of giving greater protections to “at will” employees (i.e., those without contracts) than to contract employees.
One caveat to the Supreme Court’s holding might be the extent of the employee’s pre-existing relationship with the employer. Nini had a long-term and successful pre-existing relationship with the college, which was a significant factor in the Supreme Court’s finding in her favor. What about the over-70 employee whose relationship is only a year or less? The Nini Court failed to address whether or not the pre-existing relationship must be of any specific length or scope. Thus, chances are that employers will try to distinguish cases in which the employee has a short pre-existing relationship from the type of lengthy career that Nini had at the college. Thus, it remains to be seen whether this will be a hard and fast rule, or may be modified down the road.
This post was written by: Omar A. Lopez, Esq.
According to the U.S. Bureau of Labor Statistics, the current estimated number of unemployed persons is 13.9 million, making the unemployment rate approximately 9%.[1] The number of long-term unemployed (those that have remained jobless for over 27 weeks) is estimated to be 5.9 million which is about 42.4% of the total unemployed.[2] Of this, Black and Latino persons hover at even higher unemployed rates.[3] Thankfully, employers are responding with help wanted ads-although sometimes, the unemployed need not apply.[4]
The discrimination against job applicants because they are unemployed is not a new invention, although recently the White House took note and decided to address the issue head-on. In September of this year, President Obama revealed The American Jobs Act of 2011, a comprehensive unemployment reform and job creation bill. The bill includes measures which would help restore jobs to those workers living in the United States, such as the “Buy American” section, which offers funds in connection with the act to those which would be building or repairing a public building, as long as the materials used were created or purchased in the United States. [5] However, the part of the Act garnering much of the public’s attention is the addition of the unemployed to the discrimination protections already afforded by federal law.[6] The Act attempts to give voice to a rapidly intensifying clamor from the unemployed or underemployed by creating a new protected class and curtailing discriminatory advertisements.
The Act would serve to add unemployment to the now standard classes which federal law protects from employment discrimination and discriminatory hiring practices: race, age, color, religion, gender, national origin, and disability status, among others. The Act will seek to prohibit an employer from rejecting a job applicant solely on the basis that the applicant is unemployed.[7] [8] In addition, if the Act passes, it will prohibit employers from posting job advertisements that specifically exclude the unemployed–like this advertisement which mandates that an applicant be “currently or recently employed.” [9]
Cases all across the nation can set precedents for rulings in other states. New Jersey employment law is affected by cases such as this one which was heard in the state of Kansas. It is interesting cases like this one that has kept Tayeb Hyderally involved in employment law as it pertains to sexual harassment. What makes this case so interesting is that it involves a sexual harassment case in a church setting. Before the case could be heard by the courts it first had to be deemed that it would not in any way violate the separation of church and state. In this case, it did not as the alleged sexual harassment was job related yet the secular ruling had no bearing on the religious standings of the church. The court also found that Title VII could be applied to the work setting without entangling the government in religion.
Sue Ann Dolquist was ordained in the Presbyterian Church and served as pastor. She alleged that during her tenure the choir director, who was also a church elder, made vulgar comments and touched her inappropriately. She reported the conduct to her supervisor who threatened to fire her. The situation was not addressed properly by authorities. When the work environment became unbearable she decided to quit. She then filed suit in federal court against the churches which had employed her stating that the church and its supervisors where in violation of Title VII. The defendants tried to argue a “ministerial exception” but the courts denied this motion.
Miller subjected Dolquist to oppressive, degrading, emotionally upsetting and sexually inappropriate behavior from 1996 to 2001. He was also engaged in such inappropriate behaviors with other women in the church during this same time frame. He finally resigned from his position as music director in June of 2000, but remained in the position of a church elder. When members tried to rehire Miller as the church music director in 2001, Dolquist objected and referred to his past sexual misconduct. In September of 2001 the church advised her that she had also been accused of engaging in behavior similar to Miller’s. In October, 2001, she was fired even though her job performance was satisfactory.
She filed five counts against the Heartland church sexual discrimination, sexual harassment, retaliation, negligent infliction of emotional distress and outrage and failure to supervise. Two of these cases were dismissed, infliction of emotional distress and claim for negligence.
This case was very important in setting precedents to protect employees of religious institutions against sexual harassment in the workplace.
There are many types of workplace discrimination. However, unless the discrimination is against a protected category discrimination itself is not illegal. An employer firing a person does not constitute a form of actionable discrimination unless it is based on a “protected category.” These specific categories are defined in discrimination laws which are in place to protect the employee from such actions. If the specific category is not written out in the statutes the employee is not protected by any type of discrimination law. Basically there are two forms of discrimination as defined by law, disparate treatment or disparate impact. Disparate treatment is simply treating an individual differently based on a condition such as gender or race. Disparate impact is where a policy excludes an individual from positions or promotions although that was not the original intent of the policy; simply the result of the policy.
Racial discrimination is probably one of the most common among law suits. Regulations by Federal and State laws make it illegal to discriminate according to the “terms or conditions of employment” on the basis of an individual’s skin color or race. Racial discrimination can also mean associations with a particular race are prohibited. For example, if an employer fired a white employee simply because he had black friends or was dating a woman of another race it is classified as workplace discrimination.
The ADA, Americans with Disabilities Act, is a Federal law that states the illegality of employers discriminating against an individual on the basis of a disability. An individual who is qualified and capable of completing a job cannot be denied position, promotion, compensation or training based on a disability. The stipulation here is that the individual must be physically able to complete the job or else there is no basis of discrimination which implies that the individual was denied a basic right of employment because of the disability.
Age discrimination in the workplace is a common practice. It has more loopholes that some of the other types of discriminations. Basically anyone over 40 is protected by Federal laws pertaining to age discrimination. It is illegal to simply replace an older person with a younger worker. However, it is not illegal to offer “golden handshakes” to older employees who will agree to early retirements.
Gender discrimination is rampant in the workplace as well. It is illegal to treat employees differently simply because of their gender. It goes beyond just whether or not a person is hired based on gender. Sex discrimination is pertaining to any aspect of employment such as: pay scale, title, position, vacations or hours. The Equal Pay Act states that an employer cannot pay differing wages for similar positions based on gender.
There are many forms of bias and prejudice in the workplace. Discrimination law helps to protect individuals from improper treatment and unjust discrimination.
