Disability Discrimination

The most experienced and qualified IT specialists should not have to fear being fired due to their age.  IT workers are all too frequently forced out of jobs and replaced by younger, though not more qualified, workers. The younger IT replacement workers frequently have a starting salary that exceeds that of the older long-term workers whom they replaced.

If you are an IT worker who is being forced out of your job, you should contact this office today for a free consultation.

I have represented IT workers and older employees who were pushed out of jobs because of their age 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.

If you are a pregnant worker requiring an accommodation for your pregnancy, you will have further protection from discrimination under a new law to go into effect later this month. Covered employers cannot make you take leave of absence if a reasonable accommodation for your pregnancy is available. President Biden signed the Pregnant Workers Fairness Act (PWFA) on December 29, 2022, as part of an appropriations bill. Pregnant workers now gain further rights for pregnancy accommodations under a new federal law which goes into effect on June 27, 2023. You may read the text of bill here.

Employees with a disability which requires a reasonable accommodation to allow them to do their job, should ask for the accommodation in writing. This puts the employer on notice of their legal duty to engage in an interactive process with the employee to be able to provide the accommodation. An employer-employee interactive process is necessary when the employer cannot immediately provide the articulated accommodation requested. For example, teacher with diabetes who requests that her lunch period be moved from 3 pm to 11:30 am so as to not suffer a hypoglycemic event, has a clearly defined request for an accommodation that the employer can understand. There may be no need in some situations for the employer to engage in the interactive process if the employer can provide the requested accommodation.

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.