As an employee, it is very important that you understand your rights in the workplace. The New Jersey Law Against Discrimination (LAD) is an anti-discrimination law that protects employees from being discriminated in the workplace. The LAD prohibits discrimination and bias-based harassment in employment (including labor unions and employment agencies) based on actual or perceived:
- Race or color;
- Religion or creed;
- National origin, nationality, or ancestry;
- Sex, pregnancy, or breastfeeding;
- Sexual orientation;
- Gender identity or expression;
- Marital status or domestic partnership/civil union status;
- Liability for military service;
- Atypical hereditary cellular or blood trait;
- Genetic information;
- Refusal to submit to a genetic test or make available to an employer the results of a genetic test.
This means that an employer cannot refuse to hire or promote someone because of their race, age, gender or sexual orientation, or religion. Employers are prohibited from discriminating in all aspects of employment, including but not limited to:
- Recruitment, job postings, interviews, and hiring decisions;
- Compensation (including salary and benefits); and
- All terms, conditions or privileges of employment
In the employment discrimination context, there are two important forms of prohibited conduct that you as an employee need to be aware of: disparate treatment and disparate impact. Disparate treatment involves policies and practices that treat people differently based on their membership in a protected class. Disparate impact involves policies and practices that are neutral on their face and not intended to discriminate, but disproportionately affect those in a protected class.
Some of the most common forms of workplace discrimination include:
- Race, ethnicity, color, or national origin
- Sex, gender identity, and sexual orientation
- Pregnancy or parental status
For example, if an African American or Hispanic employee suffered an adverse employment action (such as termination or demotion) allegedly due to violation of company policy, while a White employee who committed the same or similar violation did not suffer the same adverse employment action, this would constitute employment discrimination.
Bias-based harassment is harassment that demeans or intimidates individuals or groups because of any of the aforementioned protected characteristics. When an individual is subjected to harassment that rises to the level of severe or pervasive, the workplace is then considered a “hostile” work environment. Even one racial slur may be severe enough to establish a hostile work environment. When a hostile work environment arises, an employer MUST take reasonable steps to stop the harassment if they knew or should have known about it. It does not matter whether the harassment was done by a co-worker or supervisor.
The LAD also prohibits harassment because of an individual’s sex. This harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Another form of sexual harassment prohibited by the LAD is quid pro quo harassment, when a benefit (e.g., promotion at work) is conditioned on sexual favors, or when an adverse employment action (e.g., termination at work) is threatened if a person refuses a sexual advance. Women are more often than not the victims of sexual harassment in the workplace.
The LAD prohibits retaliation against an employee for complaining about or reporting alleged instances of discrimination or bias-based harassment. An employer cannot subject an employee to an adverse employment action (termination, demotion, penalization, etc.) for reporting sexual harassment to HR.
Because the LAD prohibits disability discrimination, employers must provide reasonable accommodations to an employee with a disability unless the employer can prove that doing so would be an undue burden on their operations. Employees are NOT required to request for an accommodation and will NOT be punished for doing so.
In sum, employees are afforded broad protections under the LAD. Employers cannot discriminate or harass based on any of the aforementioned protected classes. Employers cannot retaliate against an employee for complaining about alleged discrimination or harassment. Employers must provide reasonable accommodations to employees with disabilities.