Discrimination

I frequently get asked when a pregnant woman requires time off from work because of her own serious medical condition related to her pregnancy, if she can also ask for additional leave to care for her newborn child. Both the federal statute, the Family and Medical Leave Act (FMLA) and the New Jersey=s Family Leave Act (FLA) allow certain covered employees who work for certain qualified employers, i.e., employers who are covered under the statute, to take time off to care for certain family members under certain conditions.

The major difference between the statutes is that the federal statute, Family and Medical Leave Act, additionally allows an employee to take time off because of the same employee=s own serious health condition, when such serious health condition renders the employee unable to perform the function of his/her employment position.

Employees may feel as though their job status is in limbo, when after what they believed to be a frank and honest discussion with their boss, they begin to feel a chill in the workplace atmosphere, experience that others are distancing themselves from them (fearing a potential reprisal) and some of the conditions of their employment have changed. It is very disturbing when an employee bought things to the attention of management in good faith, such as what he/she believed were discriminatory practices, unsafe working conditions or that the employer was not adhering to certain legal regulations or guidelines, and felt a burden lifted and all was "now good", only to subsequently think the employer is retaliating for such honest reporting.

Generally an employer has the right to run their business or agency to promote their own financial interests and in the case of a public entity to best fulfill their purpose. The relevant legal term is “bona fide business purpose”. “Bona fide” is Latin for "good faith," and in terms of employment transfers, it signifies that honesty exists in the business purpose for the transfer, and that it is not being done for illegal reasons. One illegal reason would be that you are a member of a “protected class” under the law, and the employer is discriminating against you because you are member of that class; by way of example, you are black and the boss doesn’t like blacks or has a

This Article updates the Thursday, October 12, 2017, post, “Employer Breast Cancer Discrimination Because I Am Female?” which described the case of a corporate executive, a female who was head of original programming for a major cable television network, was fired in while on medical leave for breast cancer.

Sometimes an employer illegally discriminates against a woman with breast cancer because of a bias against women in addition to disability discrimination. One of the more common forms of discrimination against a female worker with breast cancer is when the employer will not allow an extended FMLA leave or another type of accommodation that the employer routinely gives to male employees with cancer.

As shocking as it may seem to some workers, blatant and egregious racial harassment in the US workplace still rears its ugly head in the 21st century and at times even includes KKK emblems, nooses and the N-word. An employer’s illegally using race as a factor as to who to promote and decisions as who to let go, is the more common form of race discrimination in today’s workplace. However, blatant and egregious racial harassment in the workplace, even in the form of KKK emblems, hangman’s nooses, and use of the N-word, is far more common than is generally known.

It comes as a surprise to many that the Family Medical Leave Act (FMLA) which grants family and temporary medical leave under certain circumstances, does not apply to all employers and that not all employees are covered under the Act.

Which Employers Are Required to Give FMLA Leave?

For the FMLA to apply, the employer, if a private employer, must have 50 or more employees. Private employers with fewer than 50 employees are not covered by the FMLA, but may be covered by state family and medical leave laws.

However, if you are an employee for a government agency, including elementary and secondary schools, local, state and government agencies, the FMLA applies to all such employers, regardless of the number of employees.

If My Employer Has over 50 Employees, Does That Mean I Will Be Allowed FMLA Leave?

Persons have come to me assuming that if they work for a large employer, they will automatically be entitled to leave under the federal Family Medical Leave Act (FMLA).

Finally, the issue of discrimination against older persons seeking work, those who cannot even submit a job application because they are deliberately shut-out of learning about the open positions because of their age, is garnering some national attention. I have successfully represented numerous age discrimination plaintiffs, female and male, who were employees in the private and public sectors, from cafeteria workers to professionals, and was successful in obtaining six figure settlements for them.

On December 20, 2017, a class action lawsuit on behalf of older workers was filed by the Communications Workers of America (CWA) against hundreds of large employers including Amazon.

Persons may wonder if harassment is actionable,  when they are being ridiculed or otherwise harassed at work by members of their same sex when they do not perceive the harassment as necessarily being “sexual” in nature,  i.e., they do not feel like they are being sexually “ hit on” by the harasser, and they do not perceive it as the harasser being sexually or otherwise attracted to them.

The New Jersey Law Against Discrimination, N.J.

It is rare that a working woman has not known someone, be it herself or others, who had experienced some form of sexual harassment in the workplace. While women are not the only victims, more women are coming out of the closet as to reporting such harassment.

As stated in my last article, if an employee believes he/she has a claim for two or more types discrimination when terminated by the same employer, the terminated employee is bound by the “Entire Controversy Doctrine.” All claims by one employee arising out of the same wrongful acts of an employer, should be filed together within the same lawsuit. 

 However, when there is more than one employee who has a claim against the same employer, it requires a more careful analysis as to whether, in certain specific circumstances, New Jersey law allows for them to each file a lawsuit separately or of they should join together as plaintiffs in one lawsuit.

Again, in certain circumstances, the Entire Controversy Doctrine may require two or more employees to join together in one lawsuit and not file separately. I recently represented several female employees in one discrimination lawsuit that alleged harassment, retaliation, and illegal constructive discharge.