The Long and Winding Road to Workplace Equity in New Jersey

By Kathy O’Malley

While New Jersey may be one of the smaller states in the nation, it does not shy away from being on the forefront when it comes to protecting the rights of its workers and citizens. Over the last decade, New Jersey has taken many steps to advance the rights of those who are diverse. This look in the rearview mirror highlights some of the Garden State’s efforts:

2010

  • In a noteworthy ruling, the New Jersey Supreme Court expanded protection afforded by the New Jersey Law Against Discrimination (“LAD”) by recognizing a cause of action for post-discharge retaliation. Roa v. LAFE, 200 N.J. 55 (2010).

2011

  • New Jersey banned discriminatory job advertisements that indicate that the unemployed need not apply or that current employment is a prerequisite for consideration for the posted job opportunity.

2012

  • The New Jersey Appellate Division ruled that an employee subject to anti-Semitic slurs by supervisors who wrongfully perceived the employee to be Jewish had a viable claim under the LAD. Cowher v. Carson Roberts Site Construction & Engineering, Co., 425 N.J. Super. 285 (App. Div. 2012). Prior to this decision, protection to those perceived as members of a protected class was only afforded to those “perceived as” having a disability. In this groundbreaking ruling, the Appellate Division expanded the scope of “perceived as” protection under the LAD to anyone who is harassed or discriminated against based on an incorrect understanding of that person’s membership in a protected class.
  • New Jersey amended the New Jersey Equal Pay Act to require notice to employees of their right to be free of gender discrimination in the workplace, including inequity or bias in pay, compensation, benefits or other terms and conditions of employment.

2013

  • The New Jersey Supreme Court ordered the State of New Jersey to extend the right to marry to same-sex couples, thereby affording them equal protection of the law under the New Jersey Constitution. Garden State Equality v. Dow, 216 N.J. 314 ( 2013).
  • In an effort to promote pay equity, New Jersey amended the LAD to ban retaliation against employees who ask for information about the job title, occupational category, rate of compensation (including benefits), gender, race, ethnicity, military status or national origin of any other employee or former employee. Lawmakers believed that allowing employees to freely discuss compensation and benefits was a step in the right direction toward exposing pay disparities and eliminating wage discrimination.

2014

  • New Jersey enacted the New Jersey Pregnant Workers’ Fairness Act, which amended the LAD and afforded state law employment protections to pregnant employees.
  • The New Jersey Department of Labor and Workforce Development published a Gender Equity Notice and accompanying regulations, establishing employer obligations to notify employees of their right to be free of gender inequality.
  • New Jersey enacted the Opportunity to Compete Act (commonly referred as the “Ban the Box Law”), requiring employers to eliminate the “check box” on employment applications that requests applicants to disclose criminal history information.

2015

  • The New Jersey Supreme Court adopted a broad definition of supervisors, thereby expanding the pool of personnel whose conduct can give rise to vicarious liability for supervisory workplace harassment under the LAD. Aguas v. New Jersey, 220 N.J. 494 (2015)

2016

  • The New Jersey Supreme Court expanded/clarified the scope of marital status protection afforded by the LAD, finding that the LAD prohibits an employer from discriminating against a current or prospective employee because the employee is single, married or transitioning from one state to another. Smith v. Millville Rescue Squad, 225 N.J. 373 (2016).

2017

  • New Jersey amended its Ban the Box Law to cover expunged criminal records.

2018

  • New Jersey amended the LAD to specify worker rights and protections associated with breastfeeding and expressing milk.
  • New Jersey enacted the Diane B. Allen Equal Pay Act, an amendment to the LAD that significantly expanded pay equity protections for New Jersey employees. Under the Diane B. Allen Equal Pay Act, it is an unlawful employment practice to pay an employee who is a member of any protected class under the LAD less compensation and benefits than employees outside the protected class for “substantially similar” work, unless the employer can demonstrate a recognized justification.

2019

  • New Jersey enacted the Create a Respectful and Open Workplace for Natural Hair Act (“CROWN Act”). The CROWN Act prohibits discrimination against persons based on hair texture, hair type and protective hairstyles historically associated with race.

So what lies ahead for those of us working in New Jersey? Given New Jersey’s track record for establishing laws that promote diversity in the workplace, coupled with the nationwide social justice movement afoot, New Jerseyans should expect their state to continue its efforts to eradicate discrimination in the workplace. The long and winding road is not complete and sections remain unpaved. We have more work ahead and can expect the legislature, courts and administrative agencies to remain active in promulgating needed change.

So what can a New Jersey employer do? Of course, New Jersey employers must ensure compliance with the laws identified above. Navigating the road to compliance can be fraught with potholes and roadblocks. Employers can start by evaluating their existing policies, procedures and practices. This includes reviewing and updating their employee handbooks, as needed; developing and/or updating job descriptions; and auditing their hiring and compensation practices with the assistance of counsel to identify and address disparities based on protected characteristics.

There is no need to stop there, though. Employers certainly can go a step further by taking proactive measures to develop or expand diversity and inclusion initiatives. Employers who want to achieve best practices in diversity and inclusion should undertake a comprehensive review of the strengths and weaknesses of their current practices with the aid of counsel, and should develop a strategic plan to achieve their diversity and inclusion goals.

For More Information

If you have questions about this blog post, please contact Kathleen O’Malley at komalley@duanemorris.com, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, our Diversity and Inclusion Consulting Practice Group or the attorney in the firm with whom you are regularly in contact.