Disability Discrimination Category Archives — New Jersey Employment Lawyer Blog Published by New Jersey Employment Attorneys

Published on: December 5, 2020

A Potential COVID-19 Vaccine Again Raises Issues Related to Mandatory Vaccination and Discrimination Law in New Jersey and Elsewhere

In late November and early December, reports began surfacing that approval of a COVID-19 vaccine might be near and that a ‘massive’ network designed to distribute the vaccine was ready to get millions of doses to Americans. While many may be eagerly anticipating a COVID-19 vaccine, others may be viewing it with a more skeptical eye. Some opposed to getting vaccinated may soon find themselves potentially forced to choose between getting an unwanted vaccine or losing their jobs. For certain New Jerseyans, an employer forcing a mandatory vaccine upon them may represent a violation of the Law Against Discrimination and, with the help of a skilled New Jersey employment discrimination attorney, provide the foundation of a winning civil claim in court.

In several circumstances, an employer that establishes a policy requiring all employees to receive a vaccine may be acting legally under the Law Against Discrimination. Recently, the state legislature passed a law that required all home health care workers, nursing home staff and hospital workers to receive the flu vaccine. By analogy and logical extension, any policy by one of these types of employers to require the COVID-19 vaccine would generally be permissible.

Note those words “several” and “generally” in that preceding paragraph. Whether you work at a hospital, a bank or at a construction site, there are certain situations in which your employer is limited in what it can do. Your employer cannot, for example, make you get a vaccine if you can show that receiving that vaccine would be seriously medically harmful to you. If you have a valid medical exemption and your employer refuses to honor it, that refusal could represent the basis of a winning disability discrimination case in New Jersey.

Published on: July 7, 2020

How Certain Types of Employer Conduct Can Strengthen Your Disability Discrimination Case in New Jersey

by Phillips & Associates

“Cancer” is a word that can strike fear in even the bravest of people. Everyone dreads hearing a response from the doctor that starts, “I am detecting a mass and I think we should check it out.” Undergoing cancer treatment, or even just testing for potential cancer, is a serious medical event that can impact every part of your life, both professional and personal. Among all the other fears with which you’ll inevitably have to deal, losing your job due to discrimination shouldn’t be one of them. If that happens to you, be sure to reach out to an experienced New Jersey disability discrimination attorney to discuss your legal options.

W.E., a truck driver from Pennsylvania, was one of those people who had to face those challenges. In late 2015, he underwent surgery to remove a nodule in his left lung (and so that doctors could test the nodule for cancer.) That procedure (and post-operative recovery) forced the trucker to take a two-month leave.

After just a month and a half back at work, the trucker suffered a severe respiratory infection at the end of January 2016, missing several days of work. On Feb. 1, W.E.’s second day back, the employer fired him, so he sued in federal court for disability discrimination in violation of the Americans with Disabilities Act (ADA).

Published on: May 13, 2020

An Important Case in the U.S. Supreme Court Could Expand the Range of New Jersey Employees Who Are Entitled to Obtain Damages for Discrimination

by Phillips & Associates

Currently, the U.S. Supreme Court is weighing two cases of discrimination allegedly suffered by two Catholic school teachers. A victory by the two teachers could represent a very important success for Catholic school teachers everywhere, including the 7,300+ such educators here in New Jersey, when it comes to being free from insidious employment discrimination. Even if your employer is a religion-based one, you may still be able to sue them and recover valuable compensation for discrimination or harassment you’ve suffered. If you’ve been harmed by age, sex, disability or other forms of discrimination by your religious employer, be sure you consult an experienced New Jersey employment discrimination attorney and investigate your legal options.

A. M.-B., who taught at an elementary school in Hermosa Beach, Cal., was let go at age 65 and sued for age discrimination. K.B., who taught at an elementary school in Torrance, Cal., had her employment ended shortly after she informed her employer that she would need to take medical leave to treat her breast cancer, so she sued for disability discrimination.

Both of these teachers might have had very strong cases if their employers had been private companies or public agencies. For employees like teachers at religious schools, it’s more complicated. The U.S. Supreme Court has said that the government cannot interfere in a religious entity’s decisions about who is or is not employed as a minister of that entity. This “ministerial exception” within discrimination law is rooted in the free exercise of religion clause of the First Amendment.

Published on: March 27, 2020

New Jersey’s Division on Civil Rights Issues an Important FAQ About COVID-19 and Workplace Discrimination and Harassment

by Phillips & Associates

Crises often bring out the best in people. Many recent COVID-19 (a/k/a novel coronavirus)-related stories have highlighted countless acts of selflessness to help people working in the healthcare industry, families with food insecurity, seniors and others. Crises also bring out the worst in people, including fear, anger, hate and discrimination. Just as the September 11th attacks brought about a wave of discrimination against people of the Islamic faith and people of Middle Eastern or Arabic heritage, COVID-19 also represents a regrettable opening for discrimination against people with health issues and people of East Asian ancestry. If you have been harmed by COVID-19-related discrimination or harassment at your job, don’t suffer in silence. Reach out to an experienced New Jersey employment attorney for help.

To help minimize incidents of coronavirus-related discrimination, the New Jersey Division on Civil Rights recently published a guidance document entitled “Civil Rights and COVID-19: Frequently Asked Questions.” That document, as it related to employment discrimination, focused primarily on two areas of potential harassment and/or discrimination: disability and race/ethnicity (or national origin.)

When it comes to discrimination or harassment based on disability or perceived disability, improper action related to COVID-19 might look different than other disability discrimination actions in the past, but the underlying concepts are the same. Just as your employer generally cannot fire you simply because your supervisor saw you take a hypertension drug and believes (without any supporting factual evidence) that the stress of the job is “too much” for you, your employer similarly cannot terminate your employment simply because, as the FAQ cited, “you coughed at work and they perceived you to have a disability related to COVID-19.”

Published on: March 20, 2020

What Your New Jersey Employer Can (and Can’t) Do Upon Finding Out You Have an Addiction

by Phillips & Associates

Disability discrimination law exists to ensure that people with physiological and mental health conditions are allowed to compete and participate in the workplace on a level playing field with workers without disabilities. That holds true for workers who are addicts. If a worker with an addiction fails to meet the mandatory minimum obligations of her job, she can still be subject to discipline or termination, just as a worker without disabilities would be. However, the law stands to protect a worker with an addiction who is doing her job – and doing it adequately well – from adverse employment action based solely on the fact that she is an addict. If that has happened to you, do not delay in reaching out to an experienced New Jersey disability discrimination attorney.

Recently, the federal case of S.W. provided an example of an employer who acted within the law. Sixteen months into her employment, S.W. showed up to work intoxicated and was found to have possessed alcohol at her workplace. At that point, the employer became aware that S.W. was an alcoholic. The employer and employee struck a “last chance” agreement that said that S.W. would seek treatment for her alcoholism and, if she violated company policy again with regard to alcohol, she would be fired.

Two and a half years later, S.W. took two absences from work, claiming she has a stomach illness and a car accident, respectively. In reality, S.W. had been hospitalized due to a “several-day drinking binge.” The employer fired S.W.

Published on: March 14, 2020

New Jersey Supreme Court Says Medical Marijuana Users Are Entitled to the Anti-Disability Discrimination Protections of the Law Against Discrimination

by Phillips & Associates

It’s been 10 years since New Jersey first permitted residents to use marijuana for certain medical purposes. Nevertheless, a stigma remains surrounding the use of marijuana, even when used properly and for legitimate medical reasons. Sometimes, that stigma bleeds over into workplace discrimination. For New Jersey workers in that position, a recent ruling from the state Supreme Court is a huge win. The new ruling makes it clear that people who suffer workplace discrimination due to their proper use of medical marijuana may pursue – and win – disability discrimination lawsuits under the Law Against Discrimination. If you’ve suffered harm at work because of your employer’s disapproval of your proper use of medical marijuana, let this ruling be a motivation not to suffer in silence. Instead, call upon an experienced New Jersey disability discrimination attorney to investigate your legal options.

The case involved a North Jersey funeral director who had cancer. As part of the director’s cancer treatment, his doctor had prescribed medical marijuana. The employer found out about the director’s medical marijuana use after the director was injured in an on-the-job vehicle accident. (While working a funeral, the director had been struck by another driver who ran a stop sign.) The director clearly “was not under the influence of marijuana” at the time of the accident, according to the doctor who treated him.

Nevertheless, the funeral home fired the director. The director sued the funeral home for disability discrimination. The trial judge concluded that the director had no case, but the Appellate Division court reversed that decision and allowed the director to go forward.

Published on: January 28, 2020

Winning Your Disability Discrimination Case in New Jersey, Even if Your Employer Began Contemplating Firing You Before Learning of Your Disability

by Phillips & Associates

When it comes to winning a disability discrimination case, timing can often be an extremely important piece of the puzzle. For example, if you have proof that your employer took an adverse action against you very shortly after you requested a reasonable accommodation for your disability, that bit of “timing” evidence can be a major positive for your case. On the other hand, if your employer has proof that it contemplated firing you before it ever became aware of your disability, that evidence potentially can weaken your case. Note that it just weakens your case… it doesn’t necessarily destroy your case. Timing is just one piece of the puzzle among many and, like any other negative fact, it can be overcome. Your skilled New Jersey disability discrimination attorney can help you map out a possible pathway to success, even when some of the pieces of your case (like timing) seem to work against you.

As an example of what we mean, there’s the case of F.C., who worked for a healthcare company. In 2015, the employer began considering replacing F.C. A few months later, the employee developed health problems that eventually required heart surgery to address.

Three weeks after F.C. returned from his post-surgery leave, the employer fired him. The employee sued in federal court, alleging that the termination violated the ADA and the FMLA. The employer had some proof on its side. For one thing, the evidence showed that the employer first began considering firing F.C. before it even knew F.C. had a disability or would need a medical leave of absence from work. That seemed to point toward the firing as being legitimate and non-discriminatory.

Published on: January 22, 2020

The Importance of a Meaningful and Legitimate ‘Interactive Process’ in Your Request for a Disability Accommodation in New Jersey

by Phillips & Associates

When you are seeking an employment accommodation in New Jersey based on your disability, it is very important to have a knowledgeable New Jersey disability discrimination attorney on your side. There are several things that your employer must do during this process and, if it doesn’t (or if it doesn’t do so in good faith,) then that may be a very important cog in your Law Against Discrimination lawsuit. An experienced attorney can spot these issues for you and help you use them to your maximum benefit.

A recent case from Hunterdon County shows what an example of a lack of good faith by an employer might look like. V.L. was a woman with depression and anxiety. V.L. worked at a Hunterdon County health care organization from 1996 to 2015.

During her employment, V.L. had requested several accommodations for her depression and anxiety, which the employer had approved. At the end of an approved 12-week leave of absence, the employee met with her doctor, as well as a physician’s assistant who worked for the employer, about her return to work. According to the P.A., the employer had already identified a replacement to fill V.L.’s job.

Published on: November 20, 2019

When the Discrimination You’ve Suffered Requires You to Go Through an Administrative Hearing and a Trial in New Jersey

by Phillips & Associates

If you’ve been the victim of discrimination in New Jersey, there may be certain circumstances where you have to argue your case before multiple bodies. For example, some situations may lead to your arguing in an administrative hearing and then later at a civil trial.

If your discrimination case is one of these procedurally complex matters, it is especially important that you have representation from a skilled New Jersey employment discrimination attorney. Your knowledgeable attorney can help, not only in putting together the factual evidence and legal arguments you need, but also in navigating all of the extra procedural hurdles that may exist in your pursuit of the compensation you need.

J.D.R. was one of those employees facing that kind of challenging case. He was a Hispanic male who worked as a housekeeping supervisor at one of the state’s centers for people with developmental disabilities. During his time working at the center, the supervisor had several absences. Even with his attendance history, the employee received a positive performance evaluation in 2015.

Published on: October 29, 2019

The New Jersey Appellate Division Revives the Disability Discrimination Case of a Woman Fired Three Weeks After Returning Following Surgery

by Phillips & Associates

Sometimes, the facts in your disability discrimination case may seem to be unfavorable, or may seem to you to present an insurmountable hill to climb to reach a successful outcome. Don’t let those “difficult” facts scare you. It may turn out that what seems to you to spell doom is actually nota “deal-breaker” for your case. A skilled New Jersey discrimination attorney may know how to take those facts, difficult ones and all, and still guide your case to get you your day in court.

Check out this case. A.C. was an employee working for a major cable television provider. In 2013, three months after her divorce, A.C. sent a copy of her final divorce judgment to her employer’s human resources department. She also sent HR paperwork about her application to change her name and get a new Social Security.

According to A.C., she thought that was all she needed to do, and that HR would handle everything else the employer needed to do from there, including taking her (now ex-)husband off her employer-provided insurance. Two years later, the employer fired A.C. after 15 years on the job. The firing took place three weeks after A.C. returned to work from gallbladder surgery.