Imagine being a member of a religion that mandates that all its followers cover their heads and being hired by a company whose employee handbook prohibits workers from wearing hats or head coverings at work. That is just one example of the allegedly innocent discrimination that happens all the time, to people in all types of groups, genders, nationalities, and religions. But it has an impact, and the New Jersey Attorney General wants it to stop. That’s why Matthew J. Platkin recently announced a proposed clarification to the prohibitions against disparate impact discrimination under New Jersey’s laws that would change all that.
Too often, when New Jersey companies are told that a company policy violates the state’s Law Against Discrimination (NJLAD), they respond with, “That’s not what we meant,” or, “We didn’t think of that.” The regulation change that Platkin and the state’s Division on Civil Rights have proposed will make clear that companies can no longer use excuses for policies that deny equal opportunity. He says that the clarifications “will help make New Jersey a more equitable and welcoming state for all of our residents.”
New Jersey is among the most progressive states in the nation when it comes to protecting the rights of members of protected classes, which for employment include:
• Race or color
• Religion or creed
• National origin, nationality, or ancestry
• Sex, pregnancy, or breastfeeding
• Sexual orientation
• Gender identity or expression
• Disability
• Marital status or domestic partnership/civil union status
• Liability for military service
• Age, atypical hereditary cellular or blood trait, genetic information, the refusal to submit to a genetic test or make available to an employer the results of a genetic test.
According to Sundeep Iyer, the director of New Jersey’s Division on Civil Rights, the state regulation’s protections go beyond prohibiting conduct that intentionally discriminates or singles out a particular group for different treatment. It also addresses policies that seem neutral on their face, but that result in disparate impact based on an employee’s membership in a protected group. As things stand now, though the state’s regulation against disparate impact discrimination prohibits policies like that described above – which discriminate against anybody whose religion dictates wearing a turban, a hijab, a yarmulke, or any other head covering — a company could plead that its “no headwear” rule was meant to be neutral, with a purpose of stopping employees from wearing hats printed with controversial messaging. If adopted, the proposed new regulation will make it clear that companies will no longer be able to plead innocence of their liability for disparate impact discrimination.
The proposed regulation does not represent a change in New Jersey’s Law Against Discrimination: Rather, it codifies what has been established through state and federal case law, explaining the policies and practices that violate the state’s existing policy. Disparate impact claims were recognized as a violation of the New Jersey Law Against Discrimination by the state’s Supreme Court back in 2005 when their ruling on a gender discrimination case included language that defined disparate impact as involving “employment practices that are facially neutral in their treatment of different groups but that, in fact, fall more harshly on one group than another, and cannot be justified by business necessity.”
Working from this basis and in an attempt to eliminate excuses, the proposed change to the regulation’s language clarifies the legal standard for disparate impact discrimination, as well as the burden of proof that an employee would need to meet for a disparate impact discrimination claim to be viable. Employees “challenging a practice or policy of a covered entity must show that the practice or policy has a disparate impact on members of a protected class” and must do so using evidence that is neither speculative nor hypothetical. The new language will also cover the other areas addressed by the NJLAD; housing, places of public accommodation, financial lending, and contracts.
A copy of the proposed regulations is available here. The rule is subject to a notice and comment period, which will remain open until August 2, 2024. All comments on the proposed rules are due on or before that date. Comments can be submitted electronically at regulations@njcivilrights.gov.
Discrimination is a complex subject. It can be difficult to distinguish between policies and actions that are purposely discriminatory, accidentally discriminatory, or non-discriminatory. If you are being affected by a policy or adverse employment action and you need assistance with determining whether your rights under the New Jersey Law Against Discrimination have been violated, contact our experienced employment discrimination attorneys today.