Disability Discrimination

Conduct on Employer’s Email or Other Electronic System May Contribute to a Hostile Work Environment.

The most common complaint I have heard from employees regarding using an employer email system is co-workers’ dissemination (and further re-distribution) of sexist jokes, homophobic humor, and proliferation of racial stereotypes. Biased co-workers or bullies may be aware such discriminatory conduct is frequently illegal, and may feel they have a personal shield to distance themselves from their own biased comments and humor when their statements are made in an email or other electronic format, rather than uttered in a physical office setting. For one, there is a time lapse between the time the biased joke or comment is published on the internet, and when it may be reviewed by the intended recipient. Throw a mud ball and run away.

With the rapidly evolving and nascent artificial intelligence technology used by employers, there is a risk of adverse consequences for employees with certain legally protected characteristics, such as disability and age, according to a study published by the Department of Labor and an independent research group. According to the study, whether by design or unintended consequences of the ever-evolving AI tools, the two groups of workers that may be most affected by illegal bias because of AI are high-end processionals whose roles require them to extensively use the newest AI tools and who are more exposed to AI than are other workers, and actual tech development workers who innovate new ways to expand the rapidly evolving AI technology.

While the study concluded the biggest potential risk of employment discrimination as a result of employer AI applications will be against those whose duties require them to predominately and regularly use rapidly evolving AI tools and against high-end processionals, there is a risk of adverse consequences against all workers who have certain legally protected characteristics.

Risk of Adverse Consequences for Employees with Certain Protected Characteristics

According to the study, a primary potential outcome of AI as to employment discrimination entails an increased risk of adverse consequences for employees with certain legally “protected” characteristics. For instance, an AI tool may have algorithms that inadvertently (or by design) discriminate against certain groups when analyzing resumes or making hiring decisions, such as people of certain races, age, or with disabilities, or applicants who identify as LGBT.

Comprehensive civil rights legislation called the Equality Act is bicameral legislation that would make it illegal to discriminate against LGBTQ+ persons in employment. In 2023, U.S. Senator Cory Booker (Dem.-NJ) reintroduced this bill in the Senate which would ban employment discrimination based on a person’s gender, gender orientation and sexual orientation status.

A study published by the Department of Labor and an independent research group found that it is likely that the higher-paying, white-collar jobs will see a higher amount of exposure to AI technology than lower paying jobs. According to the study, the two groups of workers that may be most affected by illegal bias because of AI are 1.) actual tech development workers who innovate new ways to expand the rapidly evolving and nascent Artificial Intelligence technology, and 2.) high-end processionals whose roles require them to use the newest and ever-evolving AI tools and who are more exposed to AI than are other workers. Functionality of AI algorithms and machine learning applications may reveal (either not intended by the employer or else by design) protected class characteristics.

Sometimes an employee believes another co-worker is trying to get them fired. When a supervisor or manager, terminates an employee, the terminated employee may wonder if she he could ever have valid discrimination claim if the supervisor or manager himself does not appear to have any personal discriminatory bias. The terminated employee may have a valid race discrimination claim if he can prove a “Cat’s Paw” theory of liability against the employer company. This legal analysis of employer liability goes under various names such as “cat’s paw” or “subordinate bias”. To learn more about “cat’s paw”, read article of 12/31/2012, How 17th century fable of a monkey and a cat is applied in employment discrimination lawsuit against UMDNJ

An employer may be held liable for employment discrimination against an employee based on the discriminatory animus of another employee who influenced, but did not make the ultimate decision.

Artificial Intelligence Can Develop Employer Biases Through Machine Learning Applications and Functionality of AI Algorithms

The growth in Artificial Intelligence technology has occurred mainly in two employment areas: The actual tech workers for the mega-companies who innovate new ways to expand the AI technology, and high-end professionals whose roles required them to use new AI tools. There is a potential danger of employment discrimination in each of these groups based on the employer’s biased conceptions of the abilities of the workers to keep up with advancements, and because of employer’s AI tools containing algorithms which either due to the employer’s intentions or ignorance can have a discriminatory impact on protected classes of workers by revealing protected characteristics such as age, race and disabilities. According to a study by a research institute, approximately 23% of all US workers have some exposure to AI in conjunction with their employment. One fifth of all workers are the most exposed and their demographics are higher-paid professionals, women and college-educated workers.

Artificial Intelligence technology will target a different segment of the American workforce than has been the case in the past with technological advancements.

When people think of illegal workplace harassment they usually think in terms of sexual harassment. Newly proposed government guidelines that have not yet been passed, include harassment based on a person’s disability, race, color, national origin, age, religion, and genetic information in addition to sex harassment.

The new proposed guidelines define disability-based harassment as harassment based on the person’s physical or mental disability, and they offer more articulate definitions and examples than as contained in the current law. This includes harassment about an individual’s particular disability or harassment based on stereotypes about individuals with disabilities in general. It includes examples of harassments based on traits or characteristics linked to an individual’s disability.

In today’s NJ workplace, illegal pregnancy discrimination is all too common against female executives, middle, and lowered tiered employees across all industries. Unlike other types of discrimination such as race and ethnicity, it is rarely directly or overtly hostile but is frequently annoyingly insensitive at best and results in the worker being severed from her job at worst. The majority of employers are aware that pregnancy discrimination is illegal and take measures to mask their discriminatory actions fearing legal action by the employee.

If you are an employee at any level whose employer is not providing reasonable accommodations for your pregnancy or related medical condition, and the terms and conditions of your employment have changed, or your contract was not renewed, you should contact this office today for a free consultation. I am experienced and successful in recovering moneys as a result of pregnancy discrimination for lost wages, both past lost wages and projected future lost wages, and for recovering financial compensation for their emotional pain and suffering.

The most experienced and qualified IT specialists should not have to fear being fired due to their age.  IT workers are all too frequently forced out of jobs and replaced by younger, though not more qualified, workers. The younger IT replacement workers frequently have a starting salary that exceeds that of the older long-term workers whom they replaced.

If you are an IT worker who is being forced out of your job, you should contact this office today for a free consultation.

I have represented IT workers and older employees who were pushed out of jobs because of their age and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages.

If you are a pregnant worker requiring an accommodation for your pregnancy, you will have further protection from discrimination under a new law to go into effect later this month. Covered employers cannot make you take leave of absence if a reasonable accommodation for your pregnancy is available. President Biden signed the Pregnant Workers Fairness Act (PWFA) on December 29, 2022, as part of an appropriations bill. Pregnant workers now gain further rights for pregnancy accommodations under a new federal law which goes into effect on June 27, 2023. You may read the text of bill here.

Employees with a disability which requires a reasonable accommodation to allow them to do their job, should ask for the accommodation in writing. This puts the employer on notice of their legal duty to engage in an interactive process with the employee to be able to provide the accommodation. An employer-employee interactive process is necessary when the employer cannot immediately provide the articulated accommodation requested. For example, teacher with diabetes who requests that her lunch period be moved from 3 pm to 11:30 am so as to not suffer a hypoglycemic event, has a clearly defined request for an accommodation that the employer can understand. There may be no need in some situations for the employer to engage in the interactive process if the employer can provide the requested accommodation.