The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating in any job-related action, including recruitment, interviewing, hiring, promotions, discharge, compensation and the terms, conditions and privileges of employment on the basis of any of the law’s specified protected categories. These protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses. The LAD prohibits intentional discrimination based on any of these characteristics. Intentional discrimination may take the form of differential treatment or statements and conduct that reflect discriminatory animus or bias.

Moreover, an employment policy or practice that is neutral in its terms may be deemed unlawful if the policy or practice has an adverse impact on protected groups. However, the disparate impact may be lawful if the employment policy or practice meets an important, legitimate business need that cannot be served with a non-discriminatory measure. For example, screening out applicants for employment based on certain physical traits, such as setting a minimum height requirement, may exclude disproportionate numbers of women and people of certain national origins or ancestries. If the height requirement has a disparate impact on a protected group and is not related to an applicant’s ability to perform important job duties, it may be deemed unlawful. To establish the lawfulness of a policy or practice that has a demonstrated disparate impact, an employer would have to establish that the policy is job related and consistent with business necessity, and that effective alternative practices are not available.

A physical requirement is more likely to be regarded as unlawful if there is an alternative measure of job related abilities, such as strength or stamina tests, that would provide a more accurate evaluation of a candidate’s ability to perform without screening out qualified members of groups that historically have been excluded from particular jobs.

Sexual Harassment

The LAD also prohibits harassment based on protected characteristics such as race, sex or nationality. Under the LAD, sexual harassment includes unwelcome sexual advances, requests for sexual relations or other verbal or physical conduct of a sexual nature. There are generally two types of sexual harassment. Quid pro quo harassment occurs when an employer, or an employer’s agent, implicitly or explicitly attempts to make submission to sexual demands a condition of employment. Thus, an employee may perceive that he or she must tolerate sexual advances or engage in a sexual relationship in order to continue employment, to achieve advancement, or to avoid adverse employment consequences such as poor evaluations or demotions. Similarly, it is unlawful for an employer or an employer’s agent to condition favorable treatment such as promotions, salary increases, or preferred assignments, on an employee’s acceptance of sexual advances or relations.

Hostile work environment sexual harassment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her gender. Such conduct creates an unlawful work environment when it is severe or pervasive enough to make a reasonable person of the employee’s gender believe that the conditions of employment have been altered and the working environment has become hostile or abusive. The conduct does not have to be sexual in nature and does not have to involve physical contact. For example, if a woman is subjected to non-sexual taunts or adverse treatment because of her gender, her work environment may be deemed unlawfully hostile and abusive. This analytical framework may also be applied to hostile work environments created because of an employee’s race, nationality, creed, disability, or other characteristics enumerated by the LAD. For example, racial slurs or offensive comments or jokes about a person’s dress, culture, accent or ethnic background may be severe or pervasive enough to create a hostile or abusive environment that violates the LAD.

Finally, the LAD prohibits employers from denying employment opportunities to people with disabilities unless the employer reasonably determines that the nature and extent of a person’s disability reasonably precludes his or her safe performance of a particular job. In order for the decision to be reasonable, the employer must determine that the employee’s disability precludes the performance of essential duties, not merely hinders the execution of some tasks. Furthermore, before deciding that a person’s disability precludes his or her safe performance of a particular job, an employer must first consider the possibility of making reasonable accommodations, that is, adjustments to the work assignment or workplace, that may enable the person to perform the essential functions of his or her position.

Federal and state courts have reasoned that an employer’s obligation to provide reasonable accommodation may sometimes require an employer to request information about an employee’s abilities and need for accommodation. Accordingly, if an employer has reason to believe that an employee has a disability, the mere fact that the employee does not request an accommodation may not relieve the employer from the responsibility of providing reasonable accommodations that will enable the employee to perform the essential functions of his or her job.

An accommodation may be required even if it causes the employer some inconvenience or cost. An employer must make reasonable accommodations to the limitations of an employee or applicant with a disability unless the accommodation imposes an undue hardship on the operation of its business.

On the other hand, an employer is generally free to distinguish between applicants and employees on the basis of their qualifications, competence and job performance, provided reasonable accommodations are made to qualified people with disabilities.

This information has been brought to you by the New Jersey attorneys at Garces & Grabler, P.C.

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Under terms of the agreement, Clementon Fire and Rescue of Clementon, Camden County, paid firefighter Merrissa V. Garretson $15,000 last month. The fire company also agreed to give Garretson a positive letter of employment reference whenever contacted by a prospective employer. Garretson resigned from Clementon Fire and Rescue in April 2010. As part of the settlement with Garretson, the fire company made no admission of liability.

“This is a fair settlement that resolves troubling allegations of discrimination against a young woman in a male-dominated work environment,” said Division on Civil Rights Director Chinh Q. Le. “No employee should be treated like a second-class citizen because of his or her gender, and no worker should suffer reprisals for having reported such treatment.”

At age 13, Merrissa Garretson began her employment with Clementon Fire and Rescue in May 2003 as an Explorer. She was promoted to Junior Firefighter in July 2006, and promoted again to Probationary Firefighter in July 2008. In December 2008, Garretson was promoted to the position of Firefighter. At all times, she was a volunteer employee and was not paid by the fire company.

According to her formal Complaint, Garretson approached the fire company’s deputy chief, Randall Freiling, in March 2009 to report repeated, discriminatory remarks by a male firefighter that were demeaning to women generally, and derogatory toward Garretson in particular. Garretson alleged that she later approached Clementon Borough Administrator Jenai L. Johnson, in July 2009, with the same information.

In the aftermath of those two conversations, Garretson received a letter from Administrator Johnson – in August 2009 — advising that a thorough investigation had been conducted, and that corrective action had been taken.

However, Garretson charged in her Complaint, she saw no evidence of a thorough investigation or corrective action.

To the contrary, Garretson alleged, she was subjected after reporting her concerns to such actions as being “bumped” from fire truck assignments in favor of less qualified, less experienced junior firefighters, and having her gear removed from her locker. Garretson filed her formal Complaint with the Division on Civil Rights in November 2009.

Director Le thanked Division Investigator Maurice Sykes and John Beauchamp, Regional Supervisor in the Division’s Camden Office, for their work on the Garretson matter.

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Named as Respondent in the Finding of Probable Cause is the Royal Aluminum Company, Inc., which manufactures insulated glass units at a factory in Newark.

In a complaint filed by former employee Nereira Berrospi Juares and joined by Division on Civil Rights Director Chinh Q. Le, Royal Aluminum is charged with terminating Juares shortly after her left hand was crushed in a machine and she was restricted by a physician to light duty.

According to the Finding of Probable Cause, Juares was injured on October 30, 2009 – her third day on the job — when her work glove became caught in a machine. She was treated for a crush injury and directed by the physician to avoid work until November 2, when she would be re-evaluated. On that date, she was told the severe swelling and bruising of her left hand necessitated further rest. On November 4, Juares was cleared to return to work on a “light duty” basis and provided Royal Aluminum a physician’s note documenting that restriction. Two days later she was terminated.

“The Law Against Discrimination was designed precisely to address the kind of conduct alleged here – a complete disregard of the civil rights of someone injured on the job,” said Division Director Le. “We simply cannot tolerate employers who exploit our most vulnerable workers – people who are just trying to earn an honest living.”

According to the Finding of Probable Cause, Royal Aluminum Vice-President Jeff Papa told State Investigators Juares was slated for discharge before her accident because of poor job performance. However, Papa acknowledged that Juares had only worked at Royal Aluminum for two full days at that point, and that no one at the company had raised a concern with her about her performance. Royal Aluminum was also unable to provide any documentation to support its claim.

Papa also maintained that Royal Aluminum was not in violation of the LAD because Juares did not belong to a protected class at the time of her discharge. Specifically, Papa contended that Juares could not be classified as “disabled” because of her hand injury.

However, according to the Finding of Probable Cause, the term “disability” is broadly construed within the meaning of the LAD, and is not limited to “severe” or “immutable” disabilities. The LAD definition of disability includes a “physical disability, infirmity, malformation or disfigurement which is caused by bodily injury.”

A Finding of Probable Cause does not resolve a civil rights complaint. Rather, it means the state has concluded its preliminary investigation and determined there is sufficient evidence to support a reasonable suspicion the LAD has been violated.

The LAD provides that each Respondent found to have committed a violation is subject to a penalty of up to $10,000. The LAD also provides for other remedies, including compensatory damages and injunctive relief, such as changes in the employer’s policies and management/staff training.

Now that the Division has issued a Finding of Probable Cause, the Royal Aluminum case will be referred for a process known as Conciliation. If Conciliation is not successful, the matter will be referred for a non-jury trial before an Administrative Law Judge. Once the trial is completed, the presiding Administrative Law Judge will issue a written Initial Decision.

Director Le thanked Division on Civil Rights Investigator Elbia Concepcion, Newark Office Manager Lorraine LeSter and Legal Specialist Benn Meistrich for their work on the Royal Aluminum case.

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In a 6-1 decision, the state Supreme Court held that an employer’s refusal to renew the contract of an employee who is over 70, when the basis for that non-renewal is age, is a prohibited discriminatory act under the Law Against Discrimination (LAD).

The decision upholds an earlier ruling by the Appellate Division that longtime dean Rose Nini could pursue a discrimination suit against Mercer County College over its refusal to renew her contract in 2005, when she was 73.

Despite Nini’s 25 consecutive years of employment with the college – including 23 years as Dean of the Division of Corporate and Community Programs – Mercer County College contended that its failure to renew her contract in 2005 was not a termination, but rather a refusal to hire. As such, the college contended in court, its non-renewal of Nini’s contract was protected by a 1985 amendment to the LAD that permits employers to refuse to hire job candidates over age 70.

In a Supreme Court amicus brief supporting Nini, however, the Division on Civil Rights maintained that the non-renewal of Nini’s contract was not protected by the so-called “over-70 exception” to the LAD. Rather, the Division contended, Mercer’s failure to renew Nini’s contract was tantamount to a firing on the basis of age, and was therefore subject to the LAD’s prohibitions on such actions.

“The Supreme Court decision confirms that the LAD’s age discrimination protections will apply even to those who are subject to renewable employment contracts, and that employers cannot avoid compliance with anti-discrimination laws simply by restructuring their relationships with their employees,” said Division on Civil Rights Director Chinh Q. Le.

In upholding the Appellate Division’s earlier ruling, the Supreme Court remanded Nini’s lawsuit for a trial on the merits of the case. However, Nini and Mercer County College have reportedly reached settlement in the matter.

Director Le, however, said the Supreme Court ruling remains significant. He noted that it would have seriously hindered the State’s ability to combat age discrimination in the future if the “overly broad interpretation” of the 1985 LAD amendment put forth by Mercer County College had been accepted by the court.

Nini was a member of the Mercer Community College Board of Trustees before she began working at the college as an executive assistant to the president in 1979. In 1982, she became Dean of the Division of Corporate and Community Programs, a position she held until her final contract expired on June 30, 2005.

Although Nini was provided three ostensibly performance-related reasons for the non-renewal of her contract, she maintained in her lawsuit that the reasons were pretexts, and that the actual reason was her age. Her civil complaint against the college, its board of trustees and President Robert Rose, filed in September 2005, charged age-based discrimination.

The trial court held, however, that state law permitted an employer to decline to renew the employment contract of any employee 70 years or age or older. Nini appealed, arguing that the non-renewal of her employment contract represented an unlawful termination or discharge. The Appellate Division agreed and reversed the trial court.

The college then petitioned the state Supreme Court for certification on the issue of the Appellate panel’s interpretation of the over-70 exception, and certification was granted. The case was argued in November 2009 and decided this past Tuesday, June 1.

Senior Deputy Attorney General Anne Marie Kelly and Assistant Attorney General Andrea M. Silkowitz handled the Nini amicus brief on behalf of the State.

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Named as Respondent in the Finding of Probable Cause is the Wendel Family Wellness Center of Woodbridge, Middlesex County. The center is accused of allowing a male patient to repeatedly harass the alleged victim, former chiropractic assistant Giselle Ramsingh, by making numerous physical and verbal advances toward her while she treated him throughout an eight-month period in 2004.

Ramsingh, of Parlin, Middlesex County, was discharged from her job in early September 2004, approximately one month after she submitted a formal memorandum complaining about being sexually harassed by the patient — the second one she had submitted in a year regarding the same patient. Her dismissal also came less than two weeks after a meeting in which, Ramsingh told State Investigators, she advised her employer she did not feel her concerns had been dealt with appropriately, and that she was contemplating calling the police.

“The allegations in this case are disturbing,” said Director Le. “Employers have a duty under the law to ensure the workplace is harassment-free, and workers have a right under the law to report harassing conduct without fear of reprisals. When an employee reports that she or he has been subjected to harassment, the employer is obligated to investigate the matter and take the appropriate steps to address it and prevent such conduct from taking place in the future.”

According to the Finding of Probable Cause, Ramsingh was subjected to acts of sexual harassment by the same patient during numerous visits for treatment at Wendel Family Wellness Center during the months spanning January through August 2004. Among other things, Ramsingh reported that the patient smacked her on the buttocks with a clipboard during one visit. On other occasions, she charged, he grabbed her ankles and moaned her first name while undergoing a chiropractic massage, grabbed and twirled her hair and, in one instance, told her she was “very sexy” and that “you don’t know all the fun I can have with you if we go out.”

According to the Finding of Probable Cause, Ramsingh not only submitted her memorandums complaining about the patient’s conduct, but also complained directly to Dr. David Wendel and his office manager, Tara Montalvo, to little avail.

The Finding of Probable Cause refers to an anecdote provided by Montalvo in which she described filling in for Ramsingh and treating the harassing patient on one occasion in June 2004. Montalvo described entering the room and beginning to massage the patient without him realizing it was Montalvo, not Ramsingh, providing treatment. Montalvo told State Investigators the unwitting patient began to moan and groan Ramsingh’s first name, “Giselle,” which Montalvo said she found “very gross.”

According to the Finding of Probable Cause, Dr. Wendel confirmed to State Investigators that Ramsingh brought her situation to his attention, and that in response he had taken over treatment of the patient. However, the state’s investigation yielded “sufficient evidence to support a reasonable suspicion” that Ramsingh was, in fact, asked to continue treating the patient on at least a few occasions after submitting her August 2004 memorandum, and that she continued during these sessions to be sexually harassed.

A Finding of Probable Cause does not resolve a civil rights complaint. Rather, it means the state has concluded its preliminary investigation and determined there is sufficient evidence to support a reasonable suspicion the New Jersey Law Against Discrimination (LAD) has been violated. The LAD provides that each Respondent found to have committed a violation is subject to a penalty of up to $10,000, provided he or she has not been convicted of a previous violation within the past five years. The LAD also provides for other remedies, including compensatory damages and injunctive relief, such as changes in the employer’s policies and management/staff training. Now that the Division has issued a Finding of Probable Cause, the case will be referred for a process known as Conciliation. If Conciliation is not successful, the matter will be referred to an Administrative Law Judge (ALJ) for a hearing on the merits, which is a non-jury trial. The ALJ will then issue a written Initial Decision.

Director Le thanked State Investigator Elbia Concepcion and Division on Civil Rights managers Atley Tyler and Lorraine LeSter for their work on the Wendel matter.

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