Disability Discrimination Study Yields Sad but Unsurprising Results

The New York Times reported today about a study recently undertaken by Rutgers and Syracuse universities.  Researchers sent resumes and cover letters on behalf of fictitious applicants for thousands of accounting jobs.  Disappointingly, they found that employers expressed interest in candidates who disclosed a disability about 26 percent less frequently than in candidates who did not.  This could explain the low national employment rate for persons with disabilities.

The researchers created two separate resumes: one for a highly qualified candidate with six years of experience, and one for a novice candidate about one year out of college.  For each resume, they composed three different cover letters: one for a candidate with no disability, one for a candidate who disclosed a spinal cord injury in the letter, and one for a candidate who disclosed having Asperger’s syndrome, a disorder that can make social interactions difficult.

Interestingly, employers had less interest in interviewing the experienced candidate that was disabled than the disabled candidate just out of school. Employers were about 34 percent less likely to show interest in an experienced disabled candidate, but only about 15 percent less likely to express interest in a disabled novice candidate.  The researchers speculated that the steeper drop-off in interested for experienced disabled candidates arose because more experienced workers represent a larger investment for employers, who must typically pay such workers higher salaries and assume the employment relationship will last longer.  Also, experienced workers are also more likely to interact with clients on a regular basis so employers may believe that hiring these workers are riskier.

Also surprising to me, the researchers found that the decline in interest in disabled workers was roughly the same whether the disability was a spinal cord injury or Asperger’s.  This points to a general bias against people with disabilities.

I found it encouraging that the study showed that the enactment of the American’s with Disabilities Act (the 1990 federal law banning discrimination against persons with disabilities) appeared to reduce bias.  Businesses covered by the act, those with 15 or more workers, were not as likely to reject the disabled candidates out of hand as smaller businesses. Although this shows progress, our work does not appear to be done. Should you experience discrimination in the workplace on account of a disability or even a perceived disability, please consult a qualified employment attorney.

Criminal Background Checks on Job Applications Banned in NJ

The New Jersey Opportunity to Compete Act implements several new requirements governing criminal background checks by prospective employers for job applicants. The law, which will take effect next March, prohibits employers with 15 or more employees from asking about a job applicant’s criminal record until after initial job interview. Employers will no longer be able to ask job seekers whether they have been convicted of a crime on a job application or at the first interview. They will only be able to do so legally after the initial interview. The law also prohibits employers from refusing to hire applicants based upon criminal records that have been expunged. The law does not apply to job positions which involve public safety and trust, such as law enforcement, the judiciary, or homeland security.

The law’s sponsor, Sen. Sandra Cunningham, D-Jersey City, said it will “give people – even who were never incarcerated but who’ve had an issue with the justice system at some point or another – an opportunity for a better job.” Employers in NJ should review their hiring practices with a competent employment attorney and implement changes, if necessary, in advance of March 2015.

Court Finds Facebook Post a Breach of Confidentiality Agreement

KEEP IT QUIET MEANS KEEP IT QUIET

We frequently advise clients to be mindful of what they post on social media, particularly when they are involved in litigation with a current or former employer. Unfortunately, Mr. Patrick Snay learned this lesson the hard way, when his daughter’s Facebook status update cost him the $80,000 settlement he obtained in an age-discrimination lawsuit.

Mr. Snay, 69, a former headmaster at Gulliver Preparatory School in Miami, sued his former employer for age discrimination when the school did not renew his contract. The parties settled the matter and entered into a settlement agreement where Gulliver agreed to pay Mr. Snay $80,000. The agreement contained a standard confidentiality clause, requiring that Snay and the school keep the terms and existence of the agreement private.

However, Snay’s daughter, Dana, a college student in Boston, couldn’t resist bragging about the case on Facebook. “Mama and Papa Snay won the case against Gulliver,” she wrote. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Dana apparently had about 1,200 Facebook friends, many of whom are current and former Gulliver students, and news of the post made its way back to the school’s lawyers, who told the Snays they’d violated the deal. Mr. Snay won a Circuit Court ruling to enforce the deal, but a Third District Court of Appeal Judge just overturned that decision. “Snay violated the agreement by doing exactly what he had promised not to do,” the Judge wrote in her decision. “His daughter then did precisely what the confidentiality agreement was designed to prevent.”

Although Snay can appeal this decision to the Florida Supreme Court, the lesson here is quite simple: When involved in legal proceedings, don’t disclose anything on social media. It is not worth it.

Bill Introduced to Address Workplace Discrimination Against LGBT Employee

Sen. Jeff Merkley (D) of Oregon has introduced legislation to prohibit discrimination in the workplace against LGBT Americans. The “Employment Non- Discrimination Act” would prohibit intentional employment discrimination against LGBT workers by employers, employment agencies and labor unions. Similar legislation is being introduced in the House.

Here in NJ, and in many other states as well, state law already prohibits discrimination on the basis of sexual orientation. However, these protections have never been implemented at a federal level for the LGBT community.

According to Bloomberg, “[i]n the last Congress, 43 senators co-sponsored legislation to end LGBT employment discrimination. The law would hardly be a burden. The overwhelming majority of Fortune 500 companies already subscribe to its guidelines. So do many municipalities. Private clubs, religious organizations and businesses with fewer than 15 employees would be exempt.”

We heartily agree that the same protections afforded racial minorities, the disabled, the aged, and other classes of employees should be extended to LGBT workers. There is no doubt that workplace discrimination on the basis of sexual orientation or identity takes place. Federal acknowledgment of this problem would be an important milestone in civil rights history.

Ashley Furniture Sued for Anti-Lesbian Bias

A former salesperson for Ashley Furniture is claiming that her employer fired her after discovering she is a lesbian. The plaintiff, Isabel Perez, claims that her employer fired her last year after a Human Resources director found a decal from the Human Rights Campaign on her car. The HRC is an organization which promotes equal rights for the lesbian, gay, bisexual and transgender community.

According to Ms. Perez’s complaint, the HR director questioned her about the bumper sticker and then made a comment that she may not fit in with the culture of the company. The HR director then said, in essence, she would “pray” about the issue and then make a decision. The store fired Ms. Perez the next day.

If you are disciplined, suspended, demoted, fired or otherwise treated differently because of who you are as a person, rather than what you have done as an employee, you may have rights under state and federal employment laws. It is unlawful to discriminate against employees because they were born a certain color, a certain ethnicity, or a certain sexual orientation.

Federal Judge Requires Plaintiffs to Turn Over Facebook Passwords

In a recent case from the U.S. District Court for the District of Colorado, a judge has taken the unusual step of requiring the plaintiffs in an employment discrimination case to provide their passwords to Facebook and other social media accounts to their former employer. The employer argued that the information posted on these Facebook accounts was relevant to the plaintiffs’ claims of emotional distress. One of the plaintiffs had posted on Facebook information about her emotional state after losing a pet and ending a relationship. In granting the employer’s motion to compel the production of this information, the court reasoned thus:

“As a general matter, I view this content logically as though each [plaintiff] had a file folder titled ‘Everything About Me,’ which they have voluntarily shared with others . . . . If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced. The fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.”

In our view, this is bad precedent. It will encourage employers here in New Jersey to make these same types of invasive requests of their former employees. Although the courts of New Jersey may decide this issue differently for now, we have made it a practice to counsel our clients to avoid using Facebook and social media if they have employment cases in litigation.

Senate Fails to Pass Paycheck Fairness Act

The Equal Pay Act (EPA) of 1963 prohibits an employer from discriminating on the basis of sex by paying employees of one sex less than it pays to employees of the another sex for equal work on jobs which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Signed almost 50 years ago, the EPA has enabled women to take steps forward in the job market. However, there still exists a noticeable gender gap between men and women with respect to pay. For example, women earn only 77 cents for every dollar earned by men. This gap crosses over all types of professions including higher paid occupations such as lawyers and doctors.

Nearly half of American workplaces either discourage employees from discussing their pay practices or outright prohibit it. This places many employees who believe they are being discriminated against in a bind. If employees report or bring up their concerns about pay inequality to management, they risk putting their job in jeopardy. It is counter-productive to social change to punish employees who ask questions regarding possible discriminatory practices.

President Obama made an attempt to counter such practices by supporting the Paycheck Fairness Act. This Act would expand the scope of the EPA and allow employees to disclose their salaries in the workplace and prohibit employers from retaliating against employees who raise wage issues. Allowing employees access to this information would require more employers to justify the pay inequality and show that the differences in pay were due to factors other than gender. Unfortunately, while the Act had great bipartisan support in the House of Representatives, it was blocked by Republicans in the Senate. After the Senate vote, the Senate Majority Leader, Harry Reid, utilized a procedural tactic which would enable the bill to be brought up again at another time. Hopefully, the next attempt to pass the bill will be a successful one.

If you are at a company which has a policy against discussing pay practices, and you believe you are being discriminated against based on your gender and are being paid unequally, there are other options to consider. If you fear retaliation by your employer, you can consult an employment law attorney to advise you on how to protect yourself through the process. You can also contact the Equal Employment Opportunity Commission, who can start an investigation on the matter.

Whistleblower Rights Trump Discretion of the Court

The Appellate Division of the New Jersey Superior Court, in Zehl v. Elizabeth Board of Education, et al., recently overturned a lower court’s appointment of a discovery master in a case involving whistleblower rights, on the principle that requiring the plaintiff to pay for an expensive litigation process would undermine equal access to the courts and deter litigants from pursuing these types of claims.

This case involved Catherine Zehl, who worked as a cook for the Elizabeth School District. While on the job, she reported a teacher’s misconduct to the school. Ms. Zehl claimed her employer retaliated against her for speaking up by placing her to work in another school. While at the other school, Ms. Zehl complained about mice, gnats, cockroaches, and feces in the kitchen and stock room. She alleged she was retaliated against again when the school board eventually informed her that they were not renewing her contract.

Ms. Zehl subsequently filed a lawsuit against the school board under the Conscientious Employment Protection Act (CEPA), alleging that she faced illegal retaliation. The lawsuit resulted in voluminous and repeated motions being filed by both parties during the discovery stage. Ultimately, the trial judge appointed a discovery master to address and resolve the parties’ discovery-related disputes and motions. The discovery master was appointed at the rate of $450 per hour, to be divided between the parties. The judge stated that a discovery master was warranted due to the “rancous and contentious nature” of the litigation. Ms. Zehl objected to using a discovery master arguing that there were no extraordinary circumstances warranting the appointment.

In reaching its decision to overturn the appointment of the discovery master, the Appellate Division reconciled two important policy objectives. First, the Court analyzed the continuing need for tools and procedures to ensure that litigation is conducted in an orderly and efficient manner. Second, the Court analyzed the safeguarding of judicial access for litigants prosecuting remedial actions pursuant to CEPA. The Court concluded that public policy evinced in remedial litigation, such as those brought under CEPA, must be at the forefront of any decision involving the appointment of a discovery master. The Court found that public policy would be thwarted if litigants bringing these lawsuits had to face significant costs. The Court stated that significant costs can deter litigants, who often have limited resources, from pursuing CEPA claims.

We believe that the Appellate Division made the right call. Employees who have faced retaliation for exposing misconduct should not have to face an additional burden of paying for an expensive discovery master. This decision is significant as the Court clearly understood the important policy objectives of CEPA and acted to ensure that the path to prosecuting these types of claims remains easily navigable.

Former Police Detective Receives Nearly 1 Million in Settlement

Former Jackson Police Officer, Detective Howard Bogan, recently received a settlement of nearly 1 million dollars from Jackson Township. Bogan’s complaint in the Superior Court of New Jersey alleged that after he was called to testify against two officers charged with perjury in connection to a narcotics case, other officers in the police department began to harass him. Bogan states that the other officers repeatedly called him a “rat,” “snitch,” and “untrustworthy.” One instance of harassment referenced in the complaint included Bogan coming into work one day and finding a toy mouse which represented a “rat.” Bogan claimed that due to the unlawful, illegal, and unethical conduct of his fellow officers, he suffered mental stress including panic attacks, anxiety attacks, and post-traumatic stress disorder. The harassment started in November 2007 and by August 2008, Bogan stated that he could no longer take the harassment and go into work. Bogan remained out of work from August 2008 to September 2009.

Bogan’s complaint resulted in Jackson Township signing a settlement in the amount of $950,000. It is reported that Jackson had to borrow $500,000 from the Ocean County Municipal Joint Fund in order to obtain payment for Bogan.

Jackson’s Mayor, Michael Reina, comments that hopefully this is a lesson learned for Jackson and other towns, and harassment and bullying is not something any township would condone.

EEOC Issues Guidance on Age Discrimination Defense

The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age and applies to employees and job applicants who are 40 years of age and older. One of the grounds for liability under the ADEA is called a “disparate impact” claim. This is where an employee demonstrates that a seemingly neutral decision by an employer has a disparate impact on older employees. As a defense to this type of claim, employers are permitted to argue that the differential treatment was due to reasonable factors other than age.

The Equal Employment Opportunity Commission (EEOC) recently issued new regulations which clarify the “reasonable factors other than age” defense under the ADEA. The new regulations, which go into effect today, provide employers with guidance on ensuring that their employment practices are in fact for reasons other than age. For example, the new regulations urge employers to take into consideration the following non-exhaustive list:
• The extent to which the factor is related to an employer’s stated business purpose;
• The extent to which an employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
• The extent to which the employer limited a supervisor’s discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
• The extent to which the employer assessed the adverse impact of its employment practice on older workers;
• The degree of harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm in light of the burden of undertaking such steps.

The above considerations provide guidance on what an employer must demonstrate to successfully utilize the “reasonable factors other than age” defense. The new rule prevents employers from routinely and mechanically utilizing the “reasonable factors other than age” defense in every decision it makes which disparately impact older employees. Instead, the new rule encourages employers to take into consideration whether their decision to implement a particular policy was truly due to factors other than age, and the possible harm the policy may have on older employees. We believe the EEOC’s clarification on the defense is one that keeps in mind the rights of older employees and the susceptibility to discrimination they frequently face at work