Employment

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.

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.