Discrimination

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.

New Jersey Courts have recognized that workplace harassment based on race does not have to be directed at a specific complaining employee for it to comprise a hostile work environment. When workers think of race harassment, they sometimes think the harasser must target a specific individual, and such person may have an actionable claim. Newly proposed federal government guidelines that have not yet been written into regulations, have a broader definition of harassment based on workers being in a legally protected class, and as to which workers may be able to bring a claim. The proposed guidelines are more in keeping with what is already New Jersey law as to who may have a hostile work environment claim.

Hostile Work Environment when Offensive Conduct Not Directed at Complaining Employee

An employee’s work environment can be affected by racially offensive conduct, even when that conduct is directed at a different employee.

The disparity in New Jersey and other states as to the increase in state minimum wages reflects the deeply ingrained class bias within the culture. New Jersey’s increase in the minimum wage by one dollar an hour to be paid by most, but not all, employers from $14.13 to $15.13 an hour is insufficient for most workers, including those who are not married and have no children, to sustain themselves. A household with children may disproportionately struggle compared to those who earn above the minimum even though many minimum wage employment positions are generally needed to fulfill necessary and essential functions in the society, and frequently few persons with other options would choose to do this work.

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.

If you are a New Jersey employee whose employer is paying you less wages for doing substantially the same kind of work as other employees who are not in the same protected class as are you according to civil rights law, such as your sex/gender or other protected class such as race, age, disability, sexual orientation etc., and the disparity in pay is based upon your being a female or other protected class, you could be entitled to treble damages under the Diane B. Allen Equal Pay Act when the employer has no legal defenses. This male/female wage pay gap happens across all economic strata but is common in higher-end positions, where the expertise of female professionals does not translate into their being valued as much as men doing substantially similar work.

What if the higher-paid male employee is performing substantially the same kind of work as I am, but the employer assigned me a different job title than him?

The assignment of a different job title or naming of an employment position does not legally insulate the employer from monetary liability for discriminatory wage practices.

There is hope coming for fairer standards required for employee plaintiffs in age discrimination cases filed under the federal Age Discrimination in Employment Act (ADEA). On December 4, 2023, Rep. Scott, Robert C. "Bobby" (D-VA-30) introduced HR-658, a bill seeking to amend the ADEA to require that federal employees and others plaintiffs alleging age discrimination under the ADEA must only prove that age was among the reasons that their employer discriminated against them by taking an adverse action against them. If this bill called the Protecting Older Workers Against Discrimination Act becomes law, it would make it easier for an employee to prevail in an age discrimination claim, by in essence overturning a 2009 US Supreme Court decision that requires employees to prove that the employer would not have taken the action except for the employer’s illegal discriminatory reasons, also known as the “but-for” causation standard.

Since the George Floyd marches, the many hoped for changes for racial pay equity and other equities have not come to pass. Black New Jersey employees who are deprived of pay equity because of their race have recourse under the New Jersey Law Against Discrimination. Currently, the New Jersey Law Against Discrimination as amended by the Diane B. Allen Equal Pay Act, is the strongest civil rights, equal pay law in the US. This NJ law is the most aggressive equal pay law in the country and victims of a race wage disparity should avail themselves of the law’s protection.

Are you a pregnant worker who is being pressured into resigning? Employers are specifically required under Pregnant Workers Fairness Act to provide reasonable accommodations to pregnant workers to allow them to keep working and not resign. Some employers are not complying and placing pressure on the workers in an attempt to get them to resign. This harassment happens particularly with non-tenured teachers, but this illegal discrimination occurs in all professions. Pregnancy discrimination claims continued to rise even after President Biden signed the Pregnant Workers Fairness Act, and a federal agency issued proposed guidelines for employers to be in compliance with the statute.

If your employer terminated you or started harassing you or pressured you into resigning upon learning of your pregnancy, or upon your asking for a reasonable accommodation to allow you to keep working, you should contact this law office today for a free consultation.

As the year 2023 wound down, many bills were introduced in the Senate and the House. One of the most important bills protecting workers was introduced in the Senate to prohibit forced arbitration for many age discrimination claims in employment. U.S. Senator Kirsten Gillibrand (D-NY), introduced the bipartisan “Protecting Older Americans Act,” which legislation would invalidate forced arbitration clauses that prevent age discrimination victims from seeking justice in a court and public accountability.

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.