Discrimination

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.

Unfortunately, yes, it sometimes happens that 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 that the employer routinely gives to male employees with cancer. Rising female executives may still have to combat a good old boys' club atmosphere which is hostile to the advancement of woman.

Clients have asked me if it possible to have a case of age discrimination, when the person who fired them is older than they are. The answer is, “Yes.” For example, an employee in her 50's may be harassed or terminated because of her age, but the boss who made the termination decision is in his 60's. The persons having the managerial authority as to who to keep and who to let go in termination decisions are frequently older themselves and long-term employees. Just because a person is older, even significantly older by a decade or more, than the terminated employee, it does not constitute an outstanding safeguard employer defense when an employer has to defend on a wrongful termination age discrimination claim.

Businesses attempting to maximize their profits by matching employees of Certain races to the racial demographics of their customers will be breaking both New Jersey and Federal Law. If a customer base is predominately white, the employer may not utilize such racial demographics to hire, train, promote, or retain white workers over non-white workers.

By way of example: a commercial business corporation may not assign black employees to work only in the stores that are in black neighborhoods but not predominately white neighborhoods. In assigning accounts to salespersons, a business may not withhold assigning accounts of white-owned businesses or white customers, to African American or other non-white salespersons. This is true even if the customer has blatantly told the business that they do not want a black salesperson.

While there is no law in New Jersey that specifically prohibits an employer from asking an employee when he/she can retire, this type of questioning could be an indication of the employer’s age bias when coupled with other biased nuances, words or actions. I have represented both private and public employees in age discrimination lawsuits where the plaintiffs were specifically asked that exact question, “How many years until you can retire?” before they were terminated and I was successful in obtaining six figure settlements for these Plaintiffs. 

This kind of questioning in some instances can be part of a larger pattern of age harassment and age bias against an employee, as is alleged in a recent case brought by numerous school teachers in Atlanta in a federal class action lawsuit as reported by FOX news http://www.fox5atlanta.com/news/240631536-story

In this federal class action Atlanta school teachers’ case, what the Plaintiffs’ counsel is presenting as part of the theory of discriminatory evidence, is remarkably similar to facts that were alleged by the plaintiffs in age discrimination cases in which I have successfully represented the employees.

A recent Federal case in Florida underscores the importance of an employer doing a thorough investigation. In Axel v. Fields Motorcars of Florida, Inc., No. 8:15-cv-893-17JSS (M.

Terminated employees often have come to me when their boss terminated them without giving them any reason as to what they did wrong. When this happens, a detailed inquiry is necessary, going back even several years, to determine if the firing was legal or illegal. 

Generally, when a person has a written employment contract, it may stipulate that the employee can only be fired if they did some Certain act or acts ( such as repeated tardiness, etc.) and if the employee does engage in such act, the employer may terminate the employee “ for cause”. But if the employee does not engage in the acts or otherwise violate the contract provisions that trigger the “for cause” termination, the employee’s job is generally secure, absent some illegal act by employee or other bone fide business justification.

A recent case is testing the limits of pregnancy and sex discrimination laws as a woman who opted to use a surrogate to give birth to twins has filed a discrimination suit against her employer for not allowing her to take time off under its paid maternity leave policy and discrimination based on sex, disability and pregnancy. Under the employer’s policy, women who give birth or adopt children are offered six to eight weeks of paid leave. However, the company required her to use vacation and sick days when her children were born. The Plaintiff in this matter originally  filed the suit in U.S.

On Friday, January 13, 2017, the US Supreme Court agreed to hear arguments over whether the National Labor Relations Act (NLRA) is violated when employer arbitration policies prohibit employees from filing class or collective actions. The Court granted cert and consolidated three petitions: Ernst & Young LLP v. Morris, a California case; Epic Systems v. Lewis, an appeal from a District Court for the Western of Wisconsin; and Murphy Oil USA v. National Labor Relations Board, which had been appealed in the US Court of Appeals for the Fifth Circuit.

The evolution of discrimination law in New Jersey that protects the rights of lesbian, gay, bisexual, transgender persons in their places of employment, put employers on notice they could be held liable if they allow discrimination or harassment of LGBT persons. Another evolution in the law that additionally made employers more cognizant, albeit in a more general manner, of the rights of equality for gays and lesbians, was the legalization of same sex marriages. The discrimination of LGBT persons in the workplace has not gone away however; it has just now appears in forms more subtle, as is driven underground in the ranks of management in attempts to evade liability.

The U.S.