Discrimination

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.

If you are a female employee who is unfairly judged more harshly than men in a manner that affects your promotions, you are not alone. These inherent biases may not be affecting your employment until you have already received some significant career level recognition for your accomplishments. Females in leadership positions have hurdles to overcome that males do not experience. They often must “over perform” just to be evaluated on an equal footing with the males.

As a female employee who received promotions or raises, you may have initially felt lulled into a false sense of security that the glass ceiling will not be applied to you as you move forward in your career within the company.

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.

Some persons become disheartened with current affairs and when it comes to voting, they think, “Why bother?” They may believe that voting has no direct personal bearing on the status of their employment rights or future employment opportunities.

But as evidenced by the passage of Federal and State employment laws passed in the last ten years and prior, (see below) voting for candidates who support civil rights does affect rights of employees. When persons cast their vote for their elected officials, they are voting for the representatives who have the power to ultimately draft, promote and vote on passing Federal and State laws that expand employee rights. These are civil rights laws that establish rights for those who are members of a protected class, such as race, age and ethnicity. The laws also define the classes themselves that are legally protected from job discrimination.

As reported throughout US media on October 27, 2023, workers over the age of 40 in California obtained a multi-million dollar settlement of their age discrimination claims in an alleged reduction-in-force matter. This matter is relevant to many workers in New Jersey because NJ employers will sometimes allege that they are implementing a bogus reduction-in-force, when in reality it is an illegal scheme to purge the workforce of older workers and replace them with younger workers. If you are a worker who is being let go, or was let go, in an alleged “reorganization” or a reduction-in-force, and you think your age is a factor in the termination decision, you should contact this office today for a free consultation. I have represented older workers for private and public employers, who were let go while younger workers were retained 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.

In the recent California class action age discrimination lawsuit, a group of over 350 former workers alleged they were passed over for promotions in favor of younger workers despite their job performance being comparable to their younger counterparts.

CROWN is an acronym for “Create a Respectful and Open World for Natural Hair”. While employees in New Jersey are protected from race discrimination as to hairstyles in the workplace because the state passed its own version of the CROWN Act, there is yet no similar Federal protection for all workers nationwide. On December 05, 2019, U.S. Senator Cory Booker (D-NJ) unveiled a bill that would ban discrimination based on hair textures and hairstyles that are commonly associated with a particular race or national origin.

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.

Employees may sense they are being discriminated at work because of their age or other legally protected class. Yet they may think that they will never be able to prove discrimination against them if they cannot name a witness who would come forward. This is not true.

There is rarely a witness who may provide evidence of direct age discrimination. A smoking gun witness does happen more frequently than some might imagine, but the absence of witnesses or direct evidence does not necessarily mean a plaintiff cannot prevail in a discrimination case.

As reported in the press and other media this past week, a large class action law suit was filed against a major corporation alleging that hundreds of Black workers for an automobile manufacturer in California were regularly subjected to extreme racist harassment including use of the n–word. The lawsuit alleges that Black employees routinely faced racial slurs, including variations of the n-word, and graffiti depicting nooses, swastikas and more were drawn across the facility’s public spaces.

Many persons who are not Black may be shocked at reading this reported news. They may be more shocked, and actually be in a state of disbelief, that this type of extreme racism in the workplace, including in workplaces in New Jersey, is more prevalent than as reported in the news.

Racial equilibrium in the US workplace including New Jersey is erroneously assumed by many to be the current state of relative societal norms.

Employees may sense they are being discriminated at work because of their age, race, sex, or other legally protected class. Yet they may think that they will not be able to prove discrimination against them if they cannot name a witness of the racist or sexist etc., biased behavior. This is not true.

There is rarely a smoking gun which may be incontrovertible evidence of direct discrimination, examples: a supervisor’s telling other employees, “We need younger workers,” or a manager giving directions to HR that, “[ A certain ethnic group] is trouble, don’t hire them,” or, “Women always make trouble, they are taking over,” or employees who testify that the employer uses racist epithets.