Disability Discrimination

The Federal Family and Medical Leave Act (FMLA) does not allow an employee to take time off to care for one’s parent-in-law. This is unsettling news for many couples because the lower wage earner in a couple is frequently the one who desires time off to care for an in-law. This makes economic sense because in a two-wage earning family, the person with the higher income frequently desires to remain working since the FMLA gives the right to unpaid leave, but not mandating paid leave. But to NJ employees, don’t despair! See the New Jersey Family Leave Law below, which does mandate time off to care for one’s parent-in-law.

Many persons are familiar with the FMLA which entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family medical reasons or the employee’s own medical reasons.

The Legislature enacted CEPA, New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq.

Whistleblower employees who complain that their NJ employer is violating “public policy”, should be cautious when identifying such “public policy”. If they are subsequently terminated after they complain, they may have a hard time prevailing in a claim for wrongful termination under New Jersey’s whistleblower statute, Conscientious Employee Protection Act, CEPA, N.J.S.A.

For NJ employees who experience discrimination on the job because of their weight, relief is hopefully in sight with the introduction of legislature bills that would make discrimination based on an employee’s height or weight illegal, except in those extremely rare instances where a certain weight or height is a bona fide occupational qualification. Weight discrimination disproportionately affects women. It’s no secret that individuals, usually women, are too frequently discriminated against in hiring and promotions because of their weight. Pressure on individuals, particularly women, to maintain certain weight appearance standards contributes to eating disorders and lifelong health issues. No person should suffer discrimination on the job because the boss does not care for the employee’s weight or height.

As the average age of those in the US workforce is getting older, there is a corresponding rise in ageism in the workplace. The oldest employees are the most disadvantaged in locating new employment if they are terminated, yet too often both private corporate and public employers will not hesitate to terminate even the oldest worker even though the worker is meeting the employer’s legitimate business expectations. If you were fired and think age may have been a factor, you may have a valid claim. Don’t sit on your rights.

If you are an older worker who was terminated while younger workers were retained, you should contact this office immediately for a free consultation.

Yes, there are binding precedents in the US Supreme Court as to certain employment law decisions that states must follow. Both federal courts and all state courts are obligated to follow Supreme Court precedents because Supreme Court precedents are binding precedents on all state and federal courts. This is true for employment discrimination cases and other types of employees’ rights cases. The US Supreme Court in recent years with few exceptions has issued rulings exhibiting little encouragement for workers’ rights.

By way of example, in 2020, employee rights’ advocates were alarmed when the US Supreme Court ruled that Catholic school teachers cannot sue for disability or age employment discrimination under federal laws.

If you are an employee who has a form of heart disease, or experienced some sort of heart episode in or out of the workplace, there may be unsubstantiated assumptions by your employer that you no longer can perform the essential responsibilities of your job with or without an accommodation. As the United States Supreme Court has noted, certain types of disabilities evoke stereotypical fears that perpetuate discrimination against its victims in all aspects of life, including employment. A review of the history of some of these disabilities provides a salient example that fear, rather than the handicap itself, is the major impetus for discrimination against persons with the disability.

Heart disease presents in many forms and employers will sometimes view a person returning from a leave due to a myocardial infarction or other heart condition as no longer having the ability to perform the essential functions of his or job. An executive employee could be a rising star on the upward mobility track until the employer learns the executive was born with congenital heart disease and then the accelerations in promotions abruptly halts.

It will not be news to many female employees with cancer, that employers treat female employees with cancer disparately from men with cancer. This is a synergy of both disability discrimination and sex discrimination. Women without disabilities are often held to a higher standard in employee performance evaluations than are men. This is particularly true when a woman is in an occupation that is traditionally dominated by men, where she may be seen as an “imposter” simply because of her sex.

When a woman also has a disability such as cancer, she is often held to an even higher standard for promotions, or even retention,  than a male employee who has cancer.

Despite attempts by world health organizations to eradicate many of the fears surrounding epilepsy, employees living with epilepsy may experience illegal employment discrimination in both the public and private sectors. Centuries old superstitions, fears and fallacies about being in the presence of persons who have seizure disorders have their historical roots associating seizure disorders with danger, sorcery, unpredictable supernatural powers and witchcraft. While modern science has certainly debunked the formerly widely held but unjustified belief in supernatural causation of seizures, some persons in the 21^st century nevertheless emotionally and physically distance themselves from others who are known to have epilepsy.

Unfounded fears by co-workers that they in some way may be harmed by a person having a seizure, may contribute to illegal and discriminatory actions of the employer.

This was such the issue heard by the NJ Supreme Court in a 1988 case brought by an employee against his former employer, a supermarket, who terminated him because they thought his epilepsy posed a danger to other workers if he had a seizure while in the workplace.

The federal minimum wage is a law set by the Fair Labor Standards Act (FSLA) which mandates to employers in all states the lowest hourly wage they can pay their employees. The federal minimum wage was last raised in 2009, setting it at $7.25 an hour. It is distressing that current federal minimum wage has not changed in thirteen years and remains $7.25 an hour.

New Jersey’s top law enforcer announced in a press release in August that an employer, Academy Bus Lines, must pay a former driver $40,000.00 for firing him because he took a leave to care for his dying father. According to the investigation, the Hoboken-based company fired the bus driver after he began intermittent leave under the New Jersey Family Leave Act. (FLA).

The FLA is an Act to provide employees with newly-born or adopted children or seriously ill family members temporary leave from their employment, and guaranteeing job security and certain benefits during this leave.