The Employee's Guide to Discrimination in the New Jersey Workplace

The New Jersey Law Against Discrimination (NJLAD) is among the most robust and expansive anti-discrimination laws in the U.S., providing many protections that go above and beyond federal employment laws. We’ve created this ebook to serve as a clear and concise guide to help readers understand, identify, and appropriately address employment discrimination in New Jersey workplaces. If you think you may have been subject to illegal discrimination at your place of work, this guide will help you understand your rights and how to enforce them.

The NJLAD is New Jersey’s primary anti-discrimination statute. It’s been protecting New Jersey workers from discriminatory practices in employment, housing, and public accommodation since 1945—well before the U.S. Congress passed the Civil Rights Act of 1964. It’s been amended many times since its passage, expanding, clarifying, and strengthening its provisions.

Not all forms of discrimination are illegal. For example, if an employer doesn’t like your politics, the sound of your voice, or the colors you wear, it’s unlikely that they would be violating the law for refusing to hire you for these reasons. Like the Civil Rights Act, the NJLAD has established several “protected characteristics.” Discrimination against employees based on these protected characteristics is prohibited. Under the NJLAD, these include the following:

• Race or color
• Sex
• Nationality or national origin
• Religion or creed
• Age (with some exceptions for workers under 18 or over 70)
• Gender identity or expression
• Affectional or sexual orientation
• Marital, civil union, or domestic partnership status
• Familial status (such as pregnancy or parenthood)
• Physical or mental disability
• Genetic information
• Liability for military service

Discrimination based on sex prohibits more than simply treating members of one sex less favorably across the board; it also includes discrimination based on pregnancy or breastfeeding as well as sexual harassment. Creed includes cultural beliefs or practices that are not necessarily associated with a religion.

It’s also worth noting that if an employee or applicant is discriminated against because they are merely perceived as possessing a protected characteristic such as homosexuality, disability, or a particular racial or ethnic background, this could also give rise to legal liability; it makes no difference if the employee is actually straight, able-bodied, or white.

It’s important to understand that not all unfair treatment is illegal discrimination. There are many ways employers might treat their employees unfairly that are not legally actionable. As noted above, discrimination must be based on a protected characteristic to be considered illegal. Illegal discrimination falls into three basic categories:

Disparate Treatment

Disparate treatment describes intentional acts of discrimination. If an employer knowingly treats an employee or applicant less favorably because of a protected characteristic, it engages in disparate treatment. Here are some examples of what illegal disparate treatment might look like:

• An employer prefers to hire men, passing over women who are equally or more qualified
• An employer gives a poor performance review to a disabled employee for reasons related to their disability or needed job accommodations
• During a mass layoff, American-born employees are retained while immigrant employees with similar work histories are let go

While these examples illustrate discrimination against people who are in a minority or generally disadvantaged group, as is most common, in many cases, it is also illegal for employers to discriminate against members of majority or advantaged groups. For example, if an employer routinely refused to hire or promote male, white, straight, or Christian employees because of these traits, they would likely still be violating the NJLAD.

Disparate Impact

Disparate impact discrimination is not necessarily intentional. It involves policies or practices that appear neutral at a surface level but actually have a disproportionately negative impact on people with certain protected characteristics. Below are some examples of how this could occur:

• An employer requires applicants to complete a physical agility test that assesses skills that are not needed to perform essential job functions, unnecessarily excluding older applicants and those with particular disabilities
• An employer requires all employees to hold a valid U.S. drivers license, even if driving is not part of their jobs, excluding higher percentages of immigrants and people with certain disabilities from work opportunities
• An employer automates hiring decisions using an algorithm that picks up on statistical correlations in the data points it has available. It is not given data on gender, but it notices that people with masculine names are more often in higher level positions, causing it to deem people with feminine names to be less desirable candidates for these jobs.

Retaliation

Retaliation occurs when an employer takes an adverse action against an employee because they have engaged in some kind of legally protected activity, such as filing a discrimination complaint with human resources, participating in the investigation of a complaint, or filing a legal claim against the employer. These are a few ways retaliation could appear:

• An employee is demoted or fired after filing a sexual harassment complaint
• An employee’s hours are cut after raising a concern about unequal pay among their peers
• An employee is transferred to a less desirable worksite or moved to the graveyard shift after filing a complaint against their supervisor

Harassment

The law recognizes two basic forms of harassment: quid pro quo and hostile work environment.

Quid Pro Quo

Quid pro quo harassment is a type of sexual harassment where a person in authority requests or demands sexual behavior from an employee or applicant in exchange for some benefit or in order to avoid an adverse employment action. A basic example would be a supervisor promising a promotion or raise in exchange for a date. While straightforward, this type of harassment can also be difficult to prove as it often occurs in unobserved, undocumented conversations. If this is the case, consult with an experienced sexual harassment attorney for guidance on compiling evidence.

Hostile Work Environment

A hostile work environment can be created by managers, supervisors, coworkers, and even vendors or customers. This occurs when pervasive and severe discriminatory conduct creates a work environment that is intimidating, hostile, or offensive to employees possessing certain protected characteristics. For example, this may take the form of

• Repeated slurs
• Ongoing racist or sexist jokes
• Sexually explicit images or racial caricatures displayed in the workplace
• Bullying or intimidation based on an employee’s gender identity, religion, race, or disability

An occasional slur, inappropriate joke, or passing of a distasteful image is not sufficient to create a hostile work environment under the law. The situation must be so severe and pervasive that it would cause a reasonable person with the relevant protected characteristic to perceive that the work environment as abusive.

If you believe you are experiencing or have experienced illegal discrimination, it’s important to take action promptly. This helps ensure evidence is preserved and that you’re able to meet important filing deadlines. The NJLAD gives employees up to two years after discriminatory action takes place to file suit in New Jersey court. If the behavior is ongoing, this can extend the deadline, but it’s best to get started as soon as you suspect you have a claim. Take these steps as soon as possible:

Document Everything

Start documenting everything you can as soon as possible. Gather all the evidence you can about the following:

• The dates, times, and locations of incidents
• The names of all persons involved, including perpetrators and potential witnesses
• Specific details about the discriminatory actions that were taken

Save any emails, texts, voicemails, or other communications that contain information related to these facts. If appropriate, take photos, video, or audio recordings documenting discriminatory incidents, but consult with your attorney about potential legal issues if you’re considering recording people without their knowledge or consent.

Follow Your Company’s HR Procedures

Even if you lack faith in your company’s internal systems, it’s vital that you follow your human resources department’s procedures for reporting discriminatory conduct. This creates a formal record of your allegations and gives the company an opportunity to address the issue. This formal record also protects you in case your employer decides to retaliate against you, creating a clear paper trail that can help to show that any adverse employment action could be retaliatory in nature.

Consider Filing a Claim with the New Jersey Division on Civil Rights

The New Jersey Division on Civil Rights (DCR) is the state agency charged with enforcing the NJLAD. The DCR’s Investigations Unit is responsible for investigating complaints. Investigators review relevant documents, interview witnesses, and gather evidence to determine whether there is probable cause to believe violations have occurred. It is not required, however, that you file a claim with the DCR before filing a lawsuit under the NJLAD.

How to File a Complaint with the DCR

To file a discrimination complaint with the DCR, you must submit an intake form within 180 days of the alleged violation, either by using the agency’s online portal or by calling its toll-free number: (833) NJDCR4U (833-653-2748). After you submit the intake form, a DCR investigator will call you to conduct an intake interview over the phone and verify that the DCR has jurisdiction over your complaint. If so, the DCR will provide a verified complaint form for you to sign. If it appears that both state and federal laws may have been violated, the DCR and federal Equal Employment Opportunity Commission (EEOC) may work together to investigate the claim.

Consider Filing a Lawsuit

You also have the option of filing a lawsuit in the civil division of the New Jersey Superior Court. This route allows you two years to file the claim instead of the 180 days allowed by the DCR. Additionally, the Superior Court allows more extensive discovery than the DCR, provides the option for a jury trial, and can consider a wider variety of remedies.

Work with an Experienced Employment Attorney

Proving a discrimination claim is a complex undertaking. While there is no cost associated with filing a complaint with the DCR, they are not able to give you a lot of advice or support. Whether you file a DCR complaint, a lawsuit, or both, an experienced employment attorney can help ensure it’s done correctly and provide expert guidance to give your case has the best possible chance of success. They can also help you determine the best route for pursuing your claim.

The attorneys at the Mark | Lavigne Law Firm are experienced at representing clients who have faced various forms of discrimination at work. We’ve recovered millions for our clients and can help you receive the financial compensation you deserve. Reach out to schedule a free consultation, and we’ll help you figure out your next steps. Call us at 908-460-8996, or fill out the contact form at the bottom of our employment law page. We’re here to help.