Employment Discrimination Attorney

The timeframe to report workplace harassment can vary depending on the jurisdiction and the specific laws in place.

Workplace harassment is a pervasive issue that impacts employees’ morale, productivity, and overall well-being. At McOmber McOmber & Luber, we are passionate about fighting for those who have fallen victim to this insidious behavior.

Use our Comprehensive Guide to Workplace Harassment to learn more.

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Yes, workplace harassment can overlap with other forms of harassment, such as racial, religious, age, and gender-based harassment. Discrimination and harassment can intersect, where an individual might be targeted for multiple aspects of their identity.

Workplace harassment is a pervasive issue that impacts employees’ morale, productivity, and overall well-being. At McOmber McOmber & Luber, we are passionate about fighting for those who have fallen victim to this insidious behavior.

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The law prohibits employers from basing hiring decisions on protected characteristics of a job candidate, such as race, age, gender, religion, or disability. In fact, interviewers should not even ask questions about protected characteristics during a job interview, because there is no way to separate the question from the hiring decision.

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LGBTQ+ discrimination involves treating someone unfavorably because of that person’s sexual orientation or gender identity, including transgender status.

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Gender or sex-based discrimination involves treating someone unfavorably because of that person’s sex, including the person’s sexual orientation, or gender identity (including transgender status).

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Age discrimination occurs when an employer treats an applicant or employee less favorably because of the individual’s age.

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To prove age discrimination an employee must show that a negative action such as a demotion or firing was on the basis of the employee’s age. The Age Discrimination in Employment Act (“ADEA“) forbids age discrimination against people who are 40 or older.

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Yes, job applications can ask applicants for their date of birth or year of graduation from high school or college. However, how the employer chooses to use this information may violate the ADEA.

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AARP, Aging for Life, Unretire Yourself, and HelpAge advocate for older individuals in the workplace. These organizations provide tips and advocacy opportunities for individuals to combat ageism and age discrimination in the workplace.

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The LGBT Bar provides much needed support to its members in a variety of ways. For example, it assists prospective LGBTQ+ judicial candidates to become judges, ensures law schools employ best practices to make LGBTQ+ students feel safe on campus, and hosts the annual Lavender Law Conference, the largest LGBTQ+ legal conference in the country.   

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Yes. Just as the LAD prohibits an employer from discriminating against protected groups in the workplace, it also prohibits employers from creating hostile work environments. If you believe your employer, supervisor or coworker is harassing you because of your LGBTQ+ status, and it is severe or pervasive, they are likely violating the LAD and you should report the conduct immediately.  

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The first suggestion for how to update policies and procedures to protect LGBTQ+ employees is review existing harassment, discrimination, and equal employment opportunity documents. Make updates if necessary to ensure they encompass protections for LGBTQ+ individuals when considering sex as the motivating characteristic.

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In addition to federal law, if you work in New Jersey, NJ state laws such as the Law Against Discrimination (LAD) offer broad protection from workplace discrimination based on sex, gender identity or expression, and sexual orientation.   

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Thanks to the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, Georgia, employers are prohibited from terminating employees because they are gay or transgender. The Court held that the language “on the basis of sex” in Title VII of the Civil Rights Act of 1964 banned discrimination of gay and transgender persons.  Prior to this ruling, the “basis of sex” language was interpreted to focus solely on gender, meaning male or female. 

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The National LGBT Bar Association (“LGBT Bar”) is a group of lawyers, judges, activists and affiliated gay, lesbian bisexual and transgender organizations that was created to promote “justice in and through the legal profession for the LGBTQ+ community in all its diversity.” 

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Employers who ask questions during interviews that would reveal information pertaining to protected characteristics without having a job-related basis, and then use that information to make their decision, are violating state and federal discrimination laws. Sometimes inappropriate questions are easy to recognize such as, “How old are you?”, while others are less obvious. For more information on discriminatory interview questions, click here.

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If you believe your employer has discriminated against you based on your race, age, pregnancy, disability, or other protected classification, you should contact an employment discrimination attorney to discuss your rights and options. After speaking with a lawyer, you will most likely file an internal complaint with your company’s human resources department or labor union. This provides your employer with the opportunity to resolve the complaint and discrimination before resorting to the legal process.

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In the private work area (an area not regularly open to the public), the DOL allows religious expression to the same extent that non-religious private expression is allowed. Supervisors are allowed to limit religious expression if it interferes with the agency’s ability to do its work properly. However the restriction is not to be of the content or viewpoints of the religious expression. For example the supervisor may ban posters in general, regardless of content, but may not specifically ban or endorse the hanging of religious/anti-religious posters.

Departments and agencies have the right to determine what is appropriate in their official correspondence, this includes email messages. Supervisors may limit correspondence strictly to the business matter being discussed and bar the inclusion of extraneous information religious or otherwise.

Not necessarily. An employer may provide telework, modified schedules, or other benefits to employees with children without running into sex discrimination issues. Employers may provide flexible working accommodations as long as they are not treating employees differently based on sex or other protected characteristics. By way of example, female employees cannot be given more favorable treatment than their male counterparts based on a gender-based assumption about who has caretaking responsibilities for children.

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Unique rules apply when an employer offers employees a severance package in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.

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The order explicitly declares that gender identity is not a bar to military service. Additionally, it officially revokes President Trump’s Presidential Memorandum on Military Service by Transgender Individuals.

The American Bar Association (ABA) has a rule that prohibits lawyers from discriminating against or harassing any individual based on race, sex, religion, disability, pregnancy, national origin, ethnicity, age, sexual orientation, marital status, or socioeconomic status. The rule protects counsel, defendants, plaintiffs, witnesses, or any individual involved in the process of practicing the law from sexist, derogatory, or offensive verbal or physical actions. These and other condescending or inappropriate gestures are now defined by the ABA as “harmful verbal and physical conduct that manifests bias or prejudice toward others.” Lawyers who knowingly engage in this type of behavior are in direct violation of the rule and subject to penalty.

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COVID-19 related discrimination is prohibited in places of public accommodation. A place of public accommodation is a business that is generally open to the public, such as retail stores, schools, libraries, medical facilities, and recreational facilities. The guidance explains that a medical facility, for example, has a duty to not engage in disparate treatment of patients on the basis of race, national origin, or disability.

Landlords cannot refuse to rent a property to an individual or refuse to make necessary repairs to a tenant’s apartment because they fear contracting COVID-19 due to the individual’s race or national origin. The landlord may take reasonable steps to protect himself and other tenants from COVID-19, however, these steps cannot consist of actions based on race or national origin stereotypes.

Employers may be in violation of NJLAD and its bar on disability discrimination if they fire an employee for showing symptoms of COVID-19.

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No. This is true even if your severance agreement contains provisions that attempt to prevent you from filing a charge with the EEOC, because this sort of provision is unenforceable. You cannot be required to return your severance pay (or other consideration) before filing a charge with the EEOC.

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Generally, a waiver in a severance agreement is valid when an employee knowingly and voluntarily consents to signing it. If an employee alleges that the waiver is not valid because he did not sign it knowingly and voluntarily, the analysis of the knowingly and voluntarily requirement is dependent on the statute under which suit was, or could be, brought.

Moreover, a valid agreement also must: (1) offer some sort of consideration, such as additional compensation, in exchange for the employee’s waiver of the right to sue; (2) not require the employee to waive future rights; and (3) comply with applicable state and federal laws.

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Yes. The federal law which protects against age discrimination is known as the Age Discrimination in Employment Act (“ADEA”). Workers age 65 and older may also be protected by the federal Americans with Disabilities Act (“ADA”).

Comments on social media that are “mere gripes not made in relation to group activity among employees” is not protected. Likewise, speech that is profane, defamatory or malicious against the company is not protected. NLRB v. Honda of America Manufacturing, Inc. An employer will also have a duty to act if the political speech infringes upon a protected group (based on their gender, race, age, disability etc.) and creates a hostile work environment for other employees.

Yes. The CDC has noted that individuals age 65 and over are at a higher risk for development of a severe case of COVID-19, should they contract it. Therefore, the CDC has encouraged employers to offer maximum flexibility to individuals age 65 and older.

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Typically many agencies organize end-of-year festivities in December during work hours. Many of these gatherings include decorations like Christmas trees and lights which have been deemed secular symbols by the Supreme Court. However the DOL recognizes the diversity of their employees and encourages supervisors to plan end-of-year functions in an inclusive spirit.

Religious expression and conversation is permissible in the same way that employees express themselves about non-religious issues. General discussion of religious views in cafeterias and hallways is permitted, as is clothing displaying religious messages.

However if the religious expression is directed at a co-worker and the co-worker asks that it stop, then the employee must refrain from such expression. If the unwelcome behavior continues it may be taken as unlawful religious harassment.

In areas accessible to the public it is important that there is no impression that the government itself is endorsing or sponsoring a religion or for that matter prohibiting religion. Favoring or disfavoring a particular religion is also not allowed. However personal religious expression is still allowed in public workplaces if it is clear that it is that of an employee acting in a personal capacity and not on behalf of the government. Employees may wear religious jewelry as long as there is no existing ban on jewelry for safety reasons. Specifically religious art or literature is not to be favored or disfavored in a public work area.

Yes, New Jersey has protections against LGBTQ discrimination The New Jersey Law Against Discrimination (NJLAD) includes extensive and broad protections against discrimination in the workplace. The law prohibits employers from discriminating against their employees on the basis of sexual orientation and gender identity, among other qualifications.

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In business, NDA and other types of confidentiality agreements serve a valuable purpose. They prevent employees from sharing confidential, proprietary information that may jeopardize trade secrets and give competitors an unfair advantage. Confidentiality agreements typically include time restrictions on how soon an employee can begin working for a customer or competitor. They also protect any product or information workers produce during their employment

In New Jersey, seasonal work is any work that is done only at a certain time of year based on need or local circumstances, for 36 weeks or less in a calendar year.

The NJLAD prohibits disability discrimination in the workplace. Although it does not expressly require employers to provide reasonable accommodations for injured employees, New Jersey courts have consistently held that employers are held to such an obligation under the law. After receiving notification of an employee’s disability, employers must work in good faith with their employees to come up with reasonable accommodations. They are required to provide disabled workers with light-duty work when it would not impose an undue hardship on the operation of the business. Additionally, a temporary leave of absence generally constitutes a reasonable accommodation under the NJLAD.

For those who may believe they are the target of age discrimination, the ADEA considers the following to be warning signs:

• Younger Workers: A company has a pattern of firing and replacing older workers with younger employees
• Age Related Comments: Age related jokes, talks of retirement, and demeaning tones are part of the work environment.
• Job Reassignment: An unpleasant job reassignment is often a sign that a company is trying to get a worker to quit.
• Unfair Performance Reviews: If performance reviews suddenly tank, chances are a company has decided to get rid of older, more expensive workers.
• Lack of Raises or Promotions: Promotions and raises are reserved for younger, less experienced staff.

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Employees who have read the arbitration agreement and agree to its terms can sign the agreement without an issue. However, those that do not agree with the terms should not sign the document without talking to their employer first.

Although it is possible that a flat-out refusal to sign could jeopardize employment, employees can try to negotiate to make the agreement more amenable.

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An arbitration agreement is a written contract in which parties agree to settle a dispute outside of court. Signing an arbitration agreement means that workers are essentially giving up their rights to sue over serious workplace issues such as:

• Sexual harassment;
• Gender and racial discrimination;
• Ageism;
• Breach of contract; and
• Wrongful termination.

Whether or not you are a resident of New Jersey, you may be protected under the NJLAD if you effectively or remotely work in New Jersey.

Employees going through domestic abuse are eligible for NJ Family Leave pay, as well as for parents who have recently adopted a child.

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The weekly benefit rate for a Family Leave Insurance claim depends on an employee’s average weekly wage. As of 2019, employees on leave may receive up to $650 per week. As of July 1, 2020, employees will receive 85 percent of their weekly pay up to $860 per week.

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The NJ Family Leave Insurance program requires employers to integrate the Family Leave pay provisions into their current leave policies. They are also required to communicate the details of the new program to their employees. Employment policies must always be clearly displayed, and employee handbooks must also be updated to include the NJ Family Leave Insurance program.

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Yes. If you are taking leave in one continuous period, you must give your employer 30 days’ notice. If you decide to leave in an intermittent manner, you must give your employer 15 days’ notice.

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Employees eligible for NJ Family Leave are those who have worked at least 20 weeks in New Jersey in addition to earning at least $172 per week in the last 12 months. Once an individual receives Family Leave pay, they may receive it for six weeks in a 12-month period. However, beginning on July 1, 2020, employees taking leave will be given 12 weeks instead of six weeks. Employees caring for a sick family member may take leave for six consecutive weeks, for intermittent weeks, or for 42 intermittent days.

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The NJ Family Leave Insurance program is not funded by employers, it is funded by employee payroll deductions.

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When a family member becomes seriously ill, or if you have a newborn baby at home, you may need to take time off. NJ Family Leave Insurance allows you to do this. NJ Family Leave Insurance provides employees with wage replacement benefits for a limited amount of leave time. An employee may take time off work without worrying about their employer retaliating against them if they are covered under the New Jersey Family Leave Act (NJFLA). If an employer tries to retaliate against you for taking time off from work, you may have grounds for a lawsuit.

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On the federal level, the Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees or applicants based on their age who are at least 40 years old. This law protects employees by ensuring that employers treat employees over and under the age of 40 years old the same. For example, employees over the age of 40 must also be eligible for the same benefits as their younger counterparts, including health insurance and retirement packages.

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Examples of age discrimination include:

• Firing or not hiring an employee because of age;
• Facing harassment or cruel behavior because of age; and
• Getting turned down for promotions or opportunities due to age

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Implied contracts are a confusing area of at-will employment which can be easily misunderstood, but can also frequently benefit an employee in employee/employer relations. There are two types of implied contracts, implied in-fact and implied in-law.

If a contract is implied in-fact, that means that the obligation is created between these parties due to the facts of the situation. If the parties’ conduct suggests an understanding, the law may find an implied in-fact contract. An example of this would be an individual being paid to mow a neighbor’s lawn several weeks in a row, only for the “employer” to refuse payment the fourth week. The law would find that an implied contract existed between the two.

An implied in-law contract is a situation in which the law imposes a duty to fulfill an unwritten contract. This can apply even if it is against an individual’s will. For example, if a doctor saves a bystander’s life, they are justified in billing the individual for their services.

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The ADA is a federal law which is meant to protect individuals with disabilities from employment discrimination, as well as discrimination in other areas of life. The ADA applies to all private employers, state and local governments, employment agencies, and labor unions with 15 or more employees.

Employees age 65 and older may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. If this is true, these employees may request reasonable accommodation for their disability rather than their age.

The ADEA is a federal law which prohibits employment discrimination against individuals age 40 and older. For example, the ADEA would prohibit an employer from intentionally excluding an individual from the workplace based on his being 65 years or older. This prohibition would hold true even if the employer acted for altruistic reasons, such as protecting the employee due to a higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include the right to reasonable accommodation due to age. However, it should be noted that employers are free to provide additional flexibility to workers age 65 and older due to their increased risk. This is not barred by the ADEA, even if younger workers are treated less favorably based on age in comparison.

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Discrimination in the workplace can cover a broad spectrum of activity specifically targeting members of the protected classes, including:

• Termination or Demotion
• Failure to Recruit or Hire
• Differential Treatment or Pay
• Withholding Training, Promotions or Career Advancement
• Being Subjected to Harassment or Increased Scrutiny
• The Existence of a Hostile Work Environment with Severe and Pervasive Harassment
• Terminating or Disciplining an Employee in Retaliation for Making a Complaint

The NJLAD “makes it unlawful to subject people to discrimination or harassment” based on a specific list of classifications. Under New Jersey law, the following types of discrimination in the workplace are prohibited:

• Affectional or Sexual Orientation Discrimination
• Age Discrimination
• AIDS or HIV Status Discrimination
• Atypical Hereditary Cellular or Blood trait, or Genetic Information Discrimination
• Breastfeeding / Pumping in the Workplace Discrimination
• Chronic Illness Discrimination
• Disability Discrimination, including Mental, Physical, or Perceived Disability
• Domestic Partnership or Civil Union Status Discrimination
• Gender Discrimination
• Gender Identity Discrimination or Gender Expression Discrimination
• Hairstyle Discrimination
• Liability for Military Service Discrimination
• LGBTQ Discrimination
• Marital Status Discrimination
• Medical Marijuana Discrimination
• National Origin Discrimination or Ancestry Discrimination
• Pregnancy Discrimination
• Race Discrimination, including Color Discrimination
• Religious Discrimination
• Sexual Harassment in the Workplace
• Transgender Discrimination

New Jersey Senate lawmakers recently passed a bill to augment the robust framework of the NJLAD and prohibit discrimination based on height and weight. Although the Bill has not yet been introduced in the State Assembly, which needs to occur before the legislation can be approved, it is a step in the right direction for anti-discrimination law.

Employment discrimination is a serious problem that can damage morale, diminish the dignity and livelihood of employees, and result in costly lawsuits. Our employment discrimination attorneys in Red Bank, Marlton, Newark, New York, and Philadelphia can take action. We will provide you with a clear and candid evaluation of any potential employment discrimination claims, as well as all legal options and recourse available to you. Contact us today. 

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No.  In 2013, New Jersey enacted a social media privacy bill to protect employees’ personal social media accounts. P.L. 2013. C. 155. The law prohibits employers from asking current or prospective employees for usernames, passwords, or access to a personal account. An employer cannot ask you to waive this right.

There are exceptions. An employer may be legally required to access an employee’s personal account to investigate work-related misconduct happening on that account if they have specific information of wrongdoing.  An employer can view an applicant’s or employee’s social media posts if they are in the public domain.  Finally, an employer can request access to e-mails and social media accounts that an employer provided.

In New Jersey, gender discrimination in the workplace can take many forms and can occur between an employee and an employer, coworker, or client, even if they are the same gender as the employee. Common examples of this type of harassment include the following actions based on gender:

• Termination or Demotion
• Failure to Recruit or Hire
• Differential Treatment or Pay
• Withholding Training, Promotions or Career Advancement
• Being Subjected to Harassment or Increased Scrutiny
• The Existence of a Hostile Work Environment with Severe and Pervasive Harassment
• Terminating or Disciplining an Employee in Retaliation for Making a Complaint

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You cannot be paid less solely because you are a woman. This is a form of gender discrimination and this is unlawful and illegal in New Jersey.

Gender discrimination is an employer’s unfair treatment of an employee or applicant based solely on the individual’s sex as it relates to hiring, benefits, terminations, or promotions.

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Yes. While your severance agreement may use broad language to describe the claims you are releasing (i.e., “all claims”), you are within your rights to file a charge with the EEOC if you believe you were discriminated against while you were employed or if you believe you were wrongfully terminated.

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