Disability Discrimination

Employees with disabilities are discriminated against in employment despite attempts to raise public awareness through public awareness education and cultural constructs such as the “Disability Pride Movement”. If you think your employer is discriminating against you because of your disability, you should contact this office today for a free consultation.

July of every year is designated as “Disability Pride Month” to commemorate the signing of the Americans with Disabilities Act (ADA) into law in July of 1990. In New Jersey, the NJ Law Against Discrimination and the ADA prohibits employment discrimination in employment and promotes inclusion in all aspects of society. Disability Pride attempts to stop the characterization of persons with disabilities in a manner which limits their options for action or changes their identity.

Employment discrimination claims because of a discriminatory animus against persons who are in legally protected classes must either cause change in employment status (see explanation below of what constitutes a change in employment status) and/or be harassment creating a hostile work environment. In New Jersey, a supervisor’s nagging/harassing behavior or rudeness toward you is not covered under discrimination law and generally is not illegal unless it results from your being a whistleblower or because you are a member of a legally protected class, which latter qualifier to sustain a claim comes as a surprise to many workers. Under N.J.S.

What comes as a surprise to many, is that harassment in the workplace is not covered under discrimination law except when the harassment is because you are a member of a legally protected class. In New Jersey, a supervisor’s hostility, nagging/harassing behavior or rudeness toward you generally is not illegal unless it results from your being a whistleblower or because you are a member of a protected class. In NJ, under the New Jersey Law Against Discrimination, N.J.S.

Anonymous ageist biases in the workplace creates a toxic environment. It should be obvious that the telling of ageist jokes, or ridiculing people’s disabilities, written language that circulates negative stereotypes, displays of cartoons that are racially offensive, and the use of offensive epithets may contribute to a hostile work environment for a worker of that particular class, even if the jokes, cartoon, epithets are not directed at any particular worker. If you believe you are being subjected to an illegal hostile work environment, you should contact this office today for a free consultation.

Anonymous Biases Can Constitute Harassment in Certain Circumstances

Courts have held that anonymous harassment, such as racist cartoons drawn on bathroom walls, graffiti or the display of a noose, may create a hostile work environment, even if it is not clearly directed at any particular employee. In Tademy v.

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.