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Important Statutes

NJLAD

01

CEPA

02

NYS Executive Law Section 296

03

Title VII

04

ADA Title I

05

ADEA

06

NYC Administrative Code

07

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NJLAD

The New Jersey Law Against Discrimination. If an employee falls victim to discrimination, sexual harassment and/or retaliation, and as horrible and depressing that employee may feel as a result, the employee will have one thing to smile about if the discrimination or sexual harassment occurred when the employee is employed in New Jersey. The New Jersey Law Against Discrimination (LAD) is considered one of the most aggressive anti-discrimination statutes in the country. Courts in New Jersey continually recognize that the New Jersey Legislature enacted this statute for the specific purpose of eradicating the cancer of discrimination in the workplace. The LAD is considered such a powerful statute that attorneys in New Jersey do not even consider filing a complaint in federal court. In fact, legal scholars in New Jersey consider the filing of a discrimination lawsuit in a New Jersey federal court legal malpractice. Filing a LAD claim in a New Jersey State court is generally the best option. For this reason, the EEOC is New Jersey is generally not utilized. In essence, with respect to the three major federal anti-discrimination statutes: Title VII, the ADEA and the ADAAA (formerly known as the ADA), consider all of them combined, with no minimum number of employees and no cap on punitive and compensatory damages.

That, in essence, is the LAD. So long as a New Jersey employee files a lawsuit in a New Jersey State court within two years of the discrimination, harassment or retaliation by the employer, the employee can take full advantage of all of the benefits which the LAD has to offer. The protections available under the LAD are also much more expansive than those offered pursuant to the federal laws. Pursuant to Title VII, the ADEA and the ADAAA (formerly known as the ADA), the following is protected: race, color, religion, sex, national origin, age and disability. The LAD offers protection for each of those protected classes and also protects against discrimination based on ancestry, sexual orientation, services in the armed forces, atypical hereditary cellular or blood trait, marital status, domestic partnership status and civil union status.

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CEPA

The Conscientious Employee Protection Act (“CEPA”), which is only available in New Jersey, has been described as one of the most far reaching whistle-blower protection laws in the country. It protects employees from retaliation for disclosing illegal conduct, testifying before a public body and for refusing to participate in an unlawful activity. The most popular of these three categories is “objection and refusal to participate,” with “disclosure of illegal activity” a distant second.

Under the category of Disclosure of Illegal Activity, CEPA prohibits employers from retaliating against an employee because the employee discloses, or threatens to disclose, an activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, rule or regulation. The key phrase in this definition is “that the employee ‘reasonably believes’ is in violation of a law, rule or regulation.” This means that the employee can be wrong, i.e., the employer may not have necessarily acted in violation of a law, rule or regulation and, even if the employee is wrong, he/she can still have a case, so long as he/she “reasonably believed” the employer violated a law, rule or regulation. But see the April 9, 2012 blog referencing the Wachovia employee who was fired over porn. In that matter, an appeals court overturned a 3.6 million dollar verdict because, as the Court determined, the employee failed to show that he had a reasonable belief that Wachovia was acting in a fraudulent manner or that he was acting as a whistleblower.

Under Objection and Refusal to Participate, CEPA prohibits employers from retaliating against employees who object to, or refuse to participate in any activity, policy or practice which the employee reasonably believes, one, is in violation of a law, rule or regulation or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care, two, is fraudulent or criminal, or three, is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

Once again, the test is not whether the employer violated the law, committed fraudulent or criminal acts, etc., but rather it is what the employee reasonably believed. Many cases fall under this category as there are many occurrences in which an employer asks an employee to do something. If the employee objects to it, or refuses to participate, based upon any of the three numerated sub-categories above, and then something happens to the employee’s employment, this often constitutes a CEPA case.

One very important thing to remember – an individual only has one year (statute of limitations) from the adverse action (termination, etc.) to file a CEPA complaint in Court. As a result, it is imperative to consult with an attorney as soon as possible following your termination or other adverse action regarding your employment. As damages include, but are not limited to, back pay, front pay, emotional distress and punitive damages, call HarassmentLaw today.

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NYS Executive Law Section 296

It shall be an unlawful discriminatory practice for an employer or licensing agency, because of an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, [Effective January 19, 2016: familial status,] marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

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Title VII

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where enduring the offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following: The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee; The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct; Unlawful harassment may occur without economic injury to, or discharge of, the victim.

Prevention is the best tool to eliminate harassment in the workplace. Employers are encouraged to take appropriate steps to prevent and correct unlawful harassment. They should clearly communicate to employees that unwelcome harassing conduct will not be tolerated. They can do this by establishing an effective complaint or grievance process, providing anti-harassment training to their managers and employees, and taking immediate and appropriate action when an employee complains. Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed.

Employees are encouraged to inform the harasser directly that the conduct is unwelcome and must stop. Employees should also report harassment to management at an early stage to prevent its escalation.

The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: It reasonably tried to prevent and promptly correct the harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

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ADA Title I

Title I requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. For example, it prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship. Religious entities with 15 or more employees are covered under title I.

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ADEA

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

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NYS Administrative Code

It shall be an unlawful discriminatory practice: For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment. For an employment agency or an employee or agent thereof to discriminate against any person because of such person's actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status in receiving, classifying, disposing or otherwise acting upon applications for its services or in referring an applicant or applicants for its services to an employer or employers. For a labor organization or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, to exclude or to expel from its membership such person or to discriminate in any way against any of its members or against any employer or any person employed by an employer. For any employer, labor organization or employment agency or an employee or agent thereof to declare, print or circulate or cause to be declared, printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status, or any intent to make any such limitation, specification or discrimination.

The provisions of this subdivision and subdivision two of this section: as they apply to employee benefit plans, shall not be construed to preclude an employer from observing the provisions of any plan covered by the federal employment retirement income security act of nineteen hundred seventy-four that is in compliance with applicable federal discrimination laws where the application of the provisions of such subdivisions to such plan would be preempted by such act; shall not preclude the varying of insurance coverages according to an employee's age; shall not be construed to affect any retirement policy or system that is permitted pursuant to paragraph (e) and (f) of subdivision three-a of section two hundred ninety-six of the executive law; shall not be construed to affect the retirement policy or system of an employer where such policy or system is not a subterfuge to evade the purposes of this chapter. The provisions of this subdivision shall not govern the employment by an employer of his or her parents, spouse, domestic partner, or children; provided, however, that such family members shall be counted as persons employed by an employer for the purposes of subdivision five of section 8-102 of this chapter.

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