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Archive for the ‘Employment Law Blog – PA and NJ’ Category

NJ Supreme Court Revives Nurse’s Disability Discrimination Case

Posted on: August 3rd, 2017

By: Jennifer L. Ward


A recent NJ Supreme Court ruling made this month will cause all employers to think twice before denying a disabled employee’s request to return to work.

The New Jersey Supreme Court successful resuscitated nurse Maryanne Grande’s New Jersey Law Against Discrimination (NJ LAD) claim that was previously dismissed by the trial court on summary judgment in favor of Saint Clare’s Health System.  Grande appealed the dismissal.  A divided Appellate Division panel reversed the dismissal in favor of Grande because the record contained several material facts in dispute. The NJ Supreme Court affirmed the judgement of the Appellate Division and remanded the matter back to the trial court.

Who got it right? Trial court or the Appellate/Supreme Court?

Here is the short story. Grande underwent a workplace injury (requiring surgery of the cervical spine) that impacted her ability to lift heavy loads.  Upon returning to work, she was required to undergo a Functional Capacity Evaluation (FCE) which restricted her ability to lift no more than sixteen pounds.  Saint Clare’s written job description for a nurse specifically stated that one essential function of the job was to lift fifty pounds from waist to chest frequently. Shortly after the FCE, Grande was re-examined by her treating doctor who agreed with the restrictions in the FCE. The following day, Grande was terminated as a result of the objective evidence (FCE report and her treating doctor’s confirmation) which clearly states that she would be not be able to perform the essential functions of a nurse. Subsequent to her termination, Grande was re-examined by her treating doctor and cleared for her full range of duties with no restrictions, but Saint Clare’s opted not to rehire her.  In its ruling, the NJ Supreme Court concluded that Grande had met the standards to establish a case for disability discrimination under NJ LAD. She had also, the court said, created multiple questions of fact, including disputes as to whether lifting loads was part of her job, whether her prior absences from workplace injuries were “chronic,” and whether she would put herself or her patients at risk by returning to work. In a concurring opinion, Justice Jaynee LaVecchia added that she wished to “underscore that, in order for a disability discrimination claim to survive a summary judgment motion, the showing required of a terminated plaintiff regarding her ability to perform the essential functions of her job is a modest one.”

Despite the existence of a written job description that specifically states the lifting fifty pounds is an essential function of the job, an objective FCE report stating that Grande is unable to lift no more than sixteen pounds, which by the way was confirmed by her treating doctor—this is still not enough.  Moral of the story is the law is stacked against the employer.

If you have any questions or would like more information, please contact Jennifer L. Ward at [email protected]


Employers Be Warned – A Single Use Of A Racial Slur Can Sustain A Workplace Harassment Claim

Posted on: August 1st, 2017

By: Barry S. Brownstein

blogPlaintiffs, Atron Castleberry and John Brown, brought a claim against staffing agency STI Group based upon their experience after being assigned to work as general laborers for Chesapeake. They allege in their lawsuit that a supervisor, after assigning them to a fence-clearing operation, threatened that they would be fired if they “[N-word]-rigged” the job. Two weeks after reporting the offensive language to a superior, they were fired without explanation. They were rehired shortly thereafter, only to be terminated again for “lack of work.”

Plaintiffs brought harassment, discrimination and retaliation claims as part of their lawsuit.  The District Court dismissed their claims on a motion to dismiss. The Third Circuit, however, found that the trial judge had applied the wrong standard in concluding that the two men needed to show their treatment had been “pervasive and regular.”  Referencing past rulings that characterized the standard alternatively as “pervasive and regular,” “severe and pervasive” and “severe or pervasive,” the Third Circuit clarified the standard required to assert a viable workplace harassment claim, holding that “severe or pervasive” is the correct standard.  Under the clarified standard, the panel concluded that the allegations were sufficient to survive a motion to dismiss. The context of the slur which came in connection with a threat of termination was something the Third Circuit considered an important factor in determining whether the claim cleared the “severe or pervasive” hurdle.

Based upon the inconsistencies in the Third Circuit’s prior holdings on the subject and the relevant precedent from the Supreme Court, it was not unexpected that the Third Circuit adopted the disjunctive standard of “severe or pervasive.”

Employers can protect themselves by having clearly defined policies, by regularly updating their employee training and even training supervisors separately from line employees.

For any questions, please contact Barry Brownstein at [email protected].

Federal Court Dismisses Chamber of Commerce’s Injunction Against Philadelphia’s Wage Equity Law

Posted on: May 31st, 2017

By: Christopher M. Curci

The Philadelphia Chamber of Commerce’s effort to halt the implementation of Philadelphia’s new wage equity law has been dismissed – for now.

By way of background, Philadelphia is at the forefront of increased legislative measures across the country designed to combat wage equity issues. In December of 2016, the Philadelphia City Council passed an ordinance making it unlawful for employers to (1) inquire about a prospective employee’s wage history, and (2) rely on a prospective employee’s wage history in determining that individual’s wages unless the employee “knowingly and willingly discloses” such information. Similar legislation was passed in Massachusetts in 2016 and Oregon last week.

The Philadelphia ordinance was set to go into effect on May 23, 2017. However, the Philadelphia Chamber of Commerce filed a Complaint and a Motion for Preliminary Injunction in the United States District Court for the Eastern District of Pennsylvania on April 6, 2017. In response, the City filed a Motion to Dismiss, arguing that the Chamber of Commerce did not have legal standing to challenge the ordinance. The City agreed to temporarily halt the effective date of the ordinance pending the Court’s decision.

Proponents of the City’s ordinance assert that basing a worker’s wages on her previous salary serves to perpetuate gender wage inequality. The Chamber asserts that the ordinance violates the constitutional rights of its members without meaningfully advancing the City’s interest in eliminating gender discrimination wage disparities. The Chamber further states that the language of the ordinance is overly broad and vague, thereby making it unduly burdensome on employers. In its Motion for Preliminary Injunction, the Chamber stated that the ordinance would be less restrictive and constitutional if it allowed wage history inquiries, but prohibited employers from using wage history as the sole determination of a worker’s salary.

On May 31, 2017, the Court held that the Chamber of Commerce lacks standing to challenge the City’s ordinance. The Court did not address the merits of whether the ordinance passes constitutional muster.  However, that issue may still be decided on another day.  The Court’s holding was predicated on the fact that the Chamber did not identify a member who would suffer specific harm from the Ordinance.  The Court has allowed the Chamber fourteen days to file an Amended Complaint, and there is also the possibility of an individual business filing a similar Complaint.

Philadelphia employers should be aware of this litigation and the possibility of the ordinance taking effect this summer. Violations of the ordinance can result in compensatory damages, punitive damages, fines, and even imprisonment.

For any questions, please contact Chris Curci at [email protected].

The Battle for Transgendered Bathroom Rights in PA

Posted on: April 19th, 2017

UPLOADBy: Jennifer Ward

Transgender rights have become an increasing divisive issue in the United States, and the use of public bathrooms has been a key part of the controversy. The Obama administration introduced federal protections that allowed transgendered students to choose a bathroom that aligned with their gender identity and not necessarily their gender of birth. Rescinding the Obama federal protections, the Trump administration revoked federal guidelines specifying that transgender students have the right to use public school restrooms that match their gender identity. Trump administration is calling for the states and local school districts to determine their own policy of transgender bathroom use.

In February, three teens from a Pittsburgh high school won in federal court to suspend their school’s bathroom policy of ‘assigned’ use. U.S. District Judge Mark Hornak ruled in favor of the transgendered students, citing the lack of evidence that physical and visual privacy was compromised. Based on this one small victory, it is unclear whether transgendered rights can prevail without federal protection. 

If you have any questions or would like more information, please contact Jennifer Ward at 267.758.6012 or [email protected].


New Jersey’s Appellate Court Rules LAD Exception Applies Concerning Accommodation of Employee’s Religious Practice

Posted on: March 22nd, 2017

By: Barry S. Brownstein

In Tisby vs. Camden County Correctional Facility (CCCF), New Jersey’s Appellate Court decided in January of this year whether the trial court had properly found that the CCCF’s concerns for its safety, security and neutrality were legitimate non-discriminatory reasons why allowing plaintiff an accommodation would cause an undue hardship on defendants. New Jersey courts have not previously addressed this issue.

After reporting to work in a traditional Muslim khimar, a tight-fitting head covering, Tisby’s supervisor informed her she was not in compliance with the uniform policy and could not work unless she removed the khimar. When Tisby refused to remove her khimar, she was sent home and disciplinary charges were recommended. Even though she had not formally submitted a request, CCCF’s warden advised Tisby he considered her “position as a request for an accommodation under Title VII of the Civil Rights Act, as well as New Jersey’s Law Against Discrimination (LAD).” Following her removal, Tisby filed a complaint against the CCCF, asserting that she had been “wrongfully suspended without pay” due to her religious beliefs, in violation of N.J.S.A. 11A:2–13, and CCCF had failed to reasonably accommodate her religious beliefs pursuant to the LAD.

The core of Tisby’s complaint is a violation of her religious rights. Under the LAD, employers cannot impose any condition upon employees that “would require a person to violate … sincerely held religious practice or religious observance.” N.J.S.A. 10:5–12(q)(1). However, an exception exists if an employer cannot accommodate “the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” after putting forth a “bona fide effort” to accommodate. An “undue hardship” is defined as “an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.” N.J.S.A. 10:5–12(q)(3)(a).

After weighing the safety concerns, including the safety risk and the ability to hide contraband in head coverings, as well as the necessity of uniform neutrality, the trial judge determined that the CCCF had met its burden of establishing accommodation was a hardship. In addition, the CCCF’s reasons for denying an accommodation were not pretextual. Therefore, Tisby failed to overcome the finding of a hardship to the CCCF. Consequently, the Appellate Court held that summary judgment to CCCF had been properly entered.

Employers should be aware that this exception exists if they cannot accommodate an employee’s religious observance or practice.

For any questions, please contact Barry Brownstein at [email protected].