Tag: Discrimination

The Appellate Division Clarifies Disability Discrimination Claims Based on Obesity under the Law Against Discrimination

Ryan Savercool

The Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, protects individuals from discrimination based on a person’s actual or perceived disability.  However, obesity is not considered an actionable disability under the LAD unless the plaintiff demonstrates that the condition is “caused by bodily injury, birth defect[,] or illness.”  Viscik v. Fowler, 173 N.J. 1, 17 (2002) (quoting N.J.S.A. 10:5-5(q)).  In Dickson v. Community Bus Lines, Inc., __ N.J. Super. __ (App. Div. Apr. 4, 2019), the Appellate Division clarified the contours of a valid hostile work environment claim premised on a plaintiff’s perceived disability stemming from his or her obesity.  The panel held that “a perceived disability claim based on obesity must be grounded upon direct or circumstantial evidence that defendants perceived the plaintiff to be disabled due to a medical condition that caused him or her to be overweight.”   In the absence of such evidence, an employer is entitled to the summary judgment dismissal of a LAD claim predicated on alleged weight discrimination. 

In Dickson, the plaintiff Corey Dickson, who weighed between 500 and 600 pounds, worked for the defendant Community Bus Lines as a driver for approximately ten years.  Dickson alleged that he was subjected to rude comments about his weight by his co-workers in the break room after work.  However, there was no evidence that Dickson was perceived as disabled during his ten years with the company. 

As a condition of his employment, Dickson was required to possess a valid Commercial Driver’s License (CDL) and a medical certification card that indicated his physical fitness to drive a bus.  From 2005 to 2015, Dickson passed the required medical certification examinations.  Following two independent medical examinations in 2015, however, Dickson was temporarily disqualified from driving pending further testing regarding potential adverse consequences from his weight.  Critically, no determination was made that Dickson was disabled; rather, the doctors determined that additional testing was required pursuant to United States Department of Transportation regulations. 

Dickson subsequently filed suit, claiming that he was subjected to a hostile work environment based upon a perceived disability (obesity).  The trial court granted summary judgment dismissing the case, finding that Dickson’s obesity did not constitute an actual or perceived disability under the LAD and that his co-workers’ conduct was not sufficiently severe or pervasive  to constitute a hostile work environment. 

The Appellate Division affirmed the trial court’s decision, and reiterated several key principles governing hostile work environment claims predicated on weight discrimination.  The panel explained that “the factfinder’s first inquiry is whether the plaintiff has proven that he or she had a disease or condition recognized as a disability under the LAD.”  Dickson, slip op. at 10 (quoting Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 573 (2016)).  In this case, the Appellate Division found that “plaintiff failed to meet this threshold requirement under the LAD because his obesity was not a disability caused by a bodily injury, birth defect, or illness.”  Id. at 11. 

The Appellate Division emphasized that “LAD claims based upon a perceived disability still require ‘a perceived characteristic that, if genuine, would qualify a person for the protections of the LAD.’”  Ibid. (quoting Cowher v. Carson & Roberts, 425 N.J. Super. 285, 296 (App. Div. 2012)).  The panel thus distinguished a religious discrimination claim premised on a mistaken perception that an individual belonged to a protected religious group from Dickson’s claims because “obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause, a condition that plaintiff failed to meet in the present case.”  Id. at 12.

The Appellate Division concluded that the plaintiff “did not establish that defendants viewed him as anything other than obese, which is not a protected class under the LAD,” and that Dickson “did not demonstrate that defendants perceived him as being disabled.” Ibid. The panel noted that there was no evidence that Dickson’s supervisors “took any actions to change the conditions of his employment as the result of any ‘perceived disability,’” and that, notwithstanding his weight,  Dickson was subject to the same work conditions as his co-workers, received several awards, and had passed his medical certification examinations for the ten years preceding his temporary leave.  Moreover, none of the independent doctors who examined plaintiff determined that he was disabled. 

In sum, the Appellate Division reaffirmed that obesity alone is not a protected category under the LAD.  Rather, a plaintiff claiming hostile work environment based on weight discrimination must additionally prove that (1) the obesity has an underlying medical cause; or (2) the plaintiff’s co-workers perceived him or her as disabled, rather than as merely obese. 

Connecticut Requires Reasonable Accommodation for Pregnant Employees

Bernard E. Jacques

On October 1, 2017 an “Act Concerning Pregnant Women in the Workplace” went into effect in Connecticut.  It has been illegal to discriminate against employees on the basis of pregnancy under both federal and Connecticut law.  However, generally under federal and to a lesser degree under Connecticut law, an employer was not required to make an accommodation for a pregnant employee.  As one court described the law: “employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees.”

That is no longer the law in Connecticut.  Now Connecticut employers are obligated “to make a reasonable accommodation for an employee or a person seeking employment due to pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer.”  Pregnancy includes “childbirth or a related condition, including but not limited to lactation.”

A reasonable accommodation includes “being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk.”

A Connecticut employer will be required to make these accommodations unless making them would require “significant difficulty or expense.”

The requirement to provide a reasonable accommodation to pregnant employees extends to employers with three or more employees.

In addition, employers are required to notify employees of the new law (i) at the time of hire; (ii) within ten days of learning that an employee is pregnant; and (iii) for all present employees before December 31. This requirement to notify employees may be met with by displaying a poster “in a conspicuous place, accessible to employees at the employer’s place of business” in English and Spanish.

The Connecticut Department of Labor has prepared a poster and employers can obtain the poster by visiting the Department’s web site.

If you have any questions about this or any other Connecticut employment issue, please contact Bernard E. Jacques (bjacques@mdmc-law.com).

Connecticut Medical Marijuana Law Protecting Employees is Upheld

Bernard E. Jacques

In enacting its medical marijuana law, Connecticut added a provision barring employers from taking adverse employment actions against a “qualifying patient” because of the patient’s use of medical marijuana.  Questions were raised as to whether the Connecticut statute was preempted by federal law, which still makes it a federal crime to use, possess or distribute marijuana.  In a case of first impression, Noffsinger v. SSC Niantic Operating Company, LLC, U.S. District Court Judge Meyer held that the Connecticut statute was not preempted, and an employee could sue for discrimination based on the employee’s use of medical marijuana.

Katelin Noffsinger was diagnosed with post-traumatic stress disorder (“PTSD”) in 2012, and in 2015 her doctors recommended medical marijuana to treat her condition.  Ms. Noffsinger complied with the statute and registered with the Connecticut Department of Consumer Protection as a “qualifying patient.”  She began taking one capsule of Marinol, a synthetic form of marijuana, on a daily basis. At the time she began taking the medical marijuana, she was working a recreational therapist at a long term care facility.

In July 2016 Ms. Noffsinger was recruited for a recreation therapy director position at a skilled nursing facility.  After an initial phone interview, she had a personal interview with the director of the facility, who offered her the job. Ms. Noffsinger accepted and began filling out the pre-employment paperwork.  At the insistence of her new employer, she gave notice to her then-current employer.

When completing her pre-employment forms, Ms. Noffsinger revealed that she was a “qualifying patient” using medical marijuana in accordance with the Connecticut statute.  She showed her new employer her registration card with the Department of Consumer Protection, and told her that she took Marinol in the evening before going to bed. She offered to provide additional medical documentation. Her new employer did not ask for any additional information.

As part of her pre-employment process, Ms. Noffsinger submitted a urine sample. Before she started working, her new employer contacted her and told her that she had failed the drug test. She had tested positive for cannabis.  Ms. Noffsinger tried to return to her former job, but it already had been filled. She filed an action against her employer for discriminating against her because of her use of medical marijuana.

Her employer moved to dismiss her claim and argued that Connecticut’s medical marijuana statute was preempted by federal law, which makes it a federal crime to use, possess, or distribute marijuana.  Federal law provides no exception for medical use.  But the court noted that Ms. Noffsinger sought to enforce only that part of the Connecticut statute which prohibits employment discrimination against authorized medicinal marijuana users.  The federal law neither makes it illegal to employ marijuana user, nor does it regulate employment practices.  And the Connecticut statute does not protect use of marijuana on the employer’s property or its use during work hours.  Therefore, the court concluded, the Connecticut medical marijuana law is not preempted by federal criminal drug laws.

Nor is the Connecticut medical marijuana law preempted by the Americans With Disabilities Act (“ADA”). The employer argued that ADA explicitly states the current drug users are not protected.  But the court saw no conflict between the ADA, which does not protect current drug users, and the Connecticut statute, which does protect a “qualifying patient.”

Although the court’s decision upholding the Connecticut Medical Marijuana law is not binding on any other court, it is likely to be persuasive and employers ignoring the protections afforded a “qualifying patient” using medical marijuana will assume a significant risk.

However, the Connecticut Medical Marijuana law does not protect employees whose positions are regulated by federal law or regulation.  Employees, whose positions are deemed safety sensitive under the U.S. Department of Transportation regulations are still required to comply with those regulations regarding drug use and drug testing.  For those employees a positive marijuana test can result in loss of a job.

If you have any questions regarding this or any other issue of Connecticut employment law, please contact Bernard E. Jacques (bjacques@mdmc-law.com).

Overview for Employers: The Philadelphia Fair Practices Act and Issues to Watch

Craig J. Smith

Employers located within the City of Philadelphia and those who do business in the City through employees located there, need to be mindful of the provisions of the Philadelphia Fair Practices Act (“FPO”), Chapter 9-1100 of the Philadelphia Code.  While in some respects the FPO is similar to the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951, et seq., in many ways the FPO goes well beyond the PHRA in designating protected categories, in identifying prohibited practices, and especially in its potential enforcement mechanisms.

By its provisions, the FPO applies to “employers” defined as “[a]ny person who does business in the City of Philadelphia through employees or who employs one or more employees exclusive of parents, spouse, Life Partner or children, including any public agency or authority; any agency, authority or other instrumentality of the Commonwealth; and the City, its departments, boards and commissions.”  §9-1102(h)

Section 9-1102(e) of the FPO defines “discrimination” as: “Any direct or indirect practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, differentiation or preference in the treatment of a person on the basis of actual or perceived race, ethnicity, color, sex (including pregnancy, childbirth, or a related medical condition), sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information or domestic or sexual violence victim status, or other act or practice made unlawful under this Chapter or under the nondiscrimination laws of the United States or the Commonwealth of Pennsylvania.”

The FPO thus sweeps within its scope all of the prohibited practices of various federal anti-discrimination laws as well as those practices prohibited by the PHRA.

In addition to the protected categories familiar to those who work with the PHRA, Title VII, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”), the FPO lists sexual orientation, gender identity, source of income, and domestic or sexual violence victim status (source of income is a protected category for housing and real property issues, not for employment purposes).

Employers also should take a close look at the FPO’s list of unlawful employment practices, as several of the practices declared unlawful appear nowhere else in federal or Pennsylvania state anti-discrimination law. Section 9-1103 of the FPO makes the following employment practices unlawful:

–           to deny or interfere with the employment opportunities of an individual based on the categories listed above, including,

–           to refuse to hire, discharge, or otherwise discriminate against any individual, with respect to tenure, promotions, terms, conditions or privileges of employment or with respect to any matter directly or indirectly related to employment;

–           for any employment agency to fail or refuse to classify properly or refer for employment or otherwise discriminate against any individual;

–           for any labor organization to discriminate against any individual or to limit, segregate or classify its membership in any way which would deprive such individual of employment opportunities, limit his or her employment opportunities or otherwise adversely affect his or her status as an employee or as an applicant for employment or adversely affect his or her wages, hours or conditions of employment;

–           for any employer, employment agency or labor organization to establish, announce or follow a formal or informal policy of denying or limiting, through a quota system or otherwise, the employment or membership opportunities of any individual or group;

–           for any employer, employment agency or labor organization prior to employment or admission to membership to cause to be printed, published or circulated any notice or advertisement relating to employment or membership indicating any preference, limitation, or specification constituting discrimination under this Chapter;

–           for any employer, employment agency or labor organization to violate any provision of Chapter 9-3200 of this Code, entitled “Entitlement to Leave Due to Domestic Violence, Sexual Assault, or Stalking;”

–           for any person to harass, threaten, harm, damage, or otherwise penalize, retaliate or discriminate in any manner against any person because he, she or it has complied with the provisions of this Chapter, exercised his, her or its rights under this Chapter, enjoyed the benefits of this Chapter, or made a charge, testified or assisted in any manner in any investigation, proceeding or hearing hereunder;

–           for any person to aid, abet, incite, induce, compel or coerce the doing of any unlawful employment practice or to obstruct or prevent any person from complying with the provisions of this Section or any order issued hereunder or to attempt directly or indirectly to commit any act declared by this Section to be an unlawful employment practice;

–           for any person subject to this Section to fail to post and exhibit prominently, in any place of business where employment is carried on, any fair practices notice prepared and made available by the Commission, which the Commission has designated for posting;

–           for any employer to fail to permit employees to dress consistently in accordance with their gender identity;

–           for any employer to fail, upon request of an individual to change that individual’s name or gender on any forms or records under the control of that employer, to make such changes to the extent permitted by law;

–           for any employer to fail to provide reasonable accommodations to the needs of an employee for her pregnancy, childbirth, or a related medical condition, as required by Section 9-1128;

–           for any employer to fail to reasonably accommodate an individual’s need to express breast milk – reasonable accommodations include providing unpaid break time or allowing an employee to use paid break, mealtime, or both, to express milk and providing a private, sanitary space that is not a bathroom where an employee can express breast milk, so long as these requirements do not impose an undue hardship (as defined in §9-1128(2)) on an employer.

Section 9-1128 provides additionally that it is an unlawful discriminatory employment practice for an employer to fail to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition, provided (i) the employee requests such accommodations and (ii) such accommodations will not cause an undue hardship to the employer.

Reasonable accommodation under Section 9-1128 means an accommodation that can be made by an employer in the workplace that will allow the employee to perform the essential functions of the job.  Reasonable accommodations include, but are not limited to, restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

Under Section 9-1128, the employer has the burden of proving undue hardship, considering such factors as nature and cost of accommodations; the overall financial resources of the employer’s facility, the number of persons employed at the facility, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer; the overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type and location of its facilities; and the type of operation or operations of the employer, including the composition, structure and functions of the workforce, the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the employer.

It is an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodations, satisfy the requisites of the job.

Yet another unlawful employment practice is set forth in §9-1130, which states, subject to listed exceptions, it shall be an unlawful discriminatory practice for an employer to procure, to seek a person’s cooperation or consent to procure, or to use credit information regarding an employee or applicant in connection with hiring, discharge, tenure, promotion, discipline or consideration of any other term, condition or privilege of employment with respect to such employee or applicant.

Of note, currently on hold pending resolution of the proceedings in Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, et al., No. 2:17-cv-01548-MSG in the United States District Court for the Eastern District of Pennsylvania, is a new provision of the FPO dealing with “wage equity” which would make it unlawful for an employer to inquire about a prospective employee’s wage history or to rely on the wage history of a prospective employee in determining the wage for such individual unless the applicant knowingly and willingly disclosed that wage history.  The Chamber has challenged this provision as a violation of the First Amendment, as a violation of the Due Process Clause of the Fourteenth Amendment due to the exposure of employers to severe penalties, and the question of whether the FPO is intended to apply to employers outside the City or even State limits provided such employers do “business in the City.”  As of this writing, the parties have submitted briefs on the Chamber’s motion for a preliminary injunction and the City’s request for an evidentiary hearing.

Section 9-1105 provides that the Commission may order remedies including but not limited to cease and desist orders, injunctive or other equitable relief including hiring, reinstating or upgrading, with or without back pay, admitting or restoring membership in a labor organization, admission to a guidance, apprentice-training or retraining program, payment of compensatory damages, payment of punitive damages (not to exceed $2000 per violation), payment of reasonable attorneys’ fees and payment of hearing costs as reimbursement for expenses incurred by the Commission.

While these remedies are consistent with existing state and federal law, the FPO’s additional penalty provisions, some of which are cited in the Chamber’s litigation, go far beyond anything in the arsenal of the EEOC or the Pennsylvania Human Relations Commission.

Section 9-1121(1) provides for fines of up to $2000 for each violation of any order of the Commission, or any provision of the FPO, including any person who shall willfully resist, prevent, impede or interfere with the Commission, its members, agents or agencies in the performance of duties.

“Any person who violates, on more than one occasion, any order of the Commission or any provision of this Chapter, or who, on more than one occasion, willfully resists, prevents, impedes or interferes with the Commission, its members, agents or agencies in the performance of duties pursuant to this Chapter, shall be guilty of a separate offense of repeat violation, and for each such repeat violation shall be subject to a fine of not more than two thousand (2,000) dollars, or imprisonment for not more than ninety (90) days, or both.  A person shall be guilty of a repeat violation regardless of whether the second or subsequent violation occurs before or after a judicial finding of a first or previous violation.  Each violation, after the first, shall constitute a separate repeat violation offense.” §9-1121(2) [Emphasis added]

An amendment to the FPO, signed by the Mayor on May 17, 2017, to be effective immediately, states that in addition to the other remedies provided in the Law, “the Commission may, upon a finding that a respondent has engaged in severe or repeated violations without effective efforts to remediate the violations, order that the respondent cease its business operations in the City for a specified period of time.” §9-1118(3) [Emphasis added]

This article does not discuss other provisions of the Philadelphia Code with which employers need to be familiar such as Chapter 9-4100, Philadelphia’s paid sick leave law, and Chapter 9-3000, Fair Criminal Record Screening Standards (“Ban the Box” ordinance governing criminal record checks in employment hiring decisions).

In sum, several of the prohibited employment activities listed in the FPO have no federal or state corollaries and therefore limited case law exists to guide employers.  This is especially concerning, since employers who violate the FPO potentially face not only administrative action, litigation and fines, but even shuttering of their businesses and  potential jail time for repeat violations.  To date, there are no definitions for what constitutes “severe or repeated violations” or what constitutes an ineffective effort to remediate the violation, nor are there any specified limits on the period of time the Commission might lawfully shut down a business.  Given all of these concerns, litigation under the FPO bears close watching.