Recently, several jurisdictions have stated that discriminating against an employee on the basis of the employee’s hairstyle, where the hairstyle is closely associated with race, constitutes race discrimination. The New Jersey Division of Civil Rights has clarified its approach to this issue, recently issuing guidance on how it will apply the New Jersey Law Against Discrimination (the “LAD”) to matters of race discrimination based on hairstyle. Specifically, the Division states:

…the LAD’s prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with or closely associated with race. That means, for example, that the LAD generally prohibits employers, housing providers and places of public accommodation (including schools) in New Jersey from enforcing grooming or appearance policies that ban, limit, or restrict hairstyles closely associated with Black people, including, but not limited to, twists, braids, cornrows, Afros, locs, Bantu knots, and fades.

The guidance document cites the Division’s enforcement statistics to point out the particular problem of race discrimination in New Jersey.  In 2018, the Division’s data show that 54% of reported bias incidents in the state were motivated by an individual’s race, national origin, or ethnicity; of these incidents, approximately 72% were motivated by anti-blackness. The Division then traces the history of race discrimination based on an individual’s hairstyle, citing historical stereotypes that have negatively impacted African-Americans, the EEOC’s position, the decisions of several federal courts that have addressed this issue, and recent legislative actions in a number of other state and local jurisdictions.

The Division analogizes its approach to race discrimination based on hairstyle to employment discrimination on the basis of hair or clothing that is associated with an employee’s religion:

Therefore, just as it would likely violate the LAD to refuse to hire an Orthodox Jewish man because he wears payot, or to refuse to hire a Muslim woman because she wears a hijab, or to refuse to hire a Sikh person because they wear uncut hair, it is unlawful to refuse to hire or to otherwise treat a Black person differently because they wear their hair in a style that is closely associated with being Black.

That means that as a general matter, employers . . . may not enforce grooming or appearance policies that ban, limit, or restrict hair styled into twists, braids, cornrows, Afros, locs, Bantu knots, fades, or other hairstyles closely associated with Black racial, cultural, and ethnic identity. Any policy specifically singling out such a hairstyle will generally constitute direct evidence of disparate treatment under the LAD and unlawful discrimination on the basis of race.

This is a critical point – as the Division will now treat prohibitions of these hairstyles as direct proof of race discrimination under the LAD, as opposed to circumstantial evidence. However, it’s also crucial to note that the Division will also scrutinize employers’ facially neutral grooming/appearance policies for evidence of race discrimination based on hairstyle:

In addition, hair-related policies that are facially neutral—such as requirements to maintain a “professional” or “tidy” appearance—will likely violate the LAD if they are discriminatorily applied or selectively enforced against Black people, such as if Black people with shoulder-length locs or braids are told that they cannot maintain their hairstyle because it is not “tidy,” whereas white people with shoulder-length hair are not told to change their hair.

Similarly, if a retail store has a policy that only employees with a “neat and tidy appearance” may work on the sales floor, but the store uses that policy to station all employees with locs or Afros in the stockroom rather than the sales floor, the store will likely be liable for race-based discrimination under the LAD. And if a school handbook requires students to maintain “appropriate” hair and lists Black hairstyles as examples of “inappropriate” hairstyles, the school has likely violated the LAD. Such policies either explicitly or in application rest on invidious racial stereotypes that hairstyles closely associated with Black people are inherently messy, unkempt, or disorderly.

In addition, the Division has taken a strong position on what constitutes a permissible justification for an employer’s grooming/appearance policy relating to hairstyles that are “inextricably intertwined with or closely associated with race.”

Covered entities also may not justify policies that, explicitly or in practice, ban, limit, or restrict natural hair or hairstyles associated with Black people based on a desire to project a certain “corporate image,” because of concerns about “customer preference” or customer complaints, or because of speculative health or safety concerns. And any legitimate health and safety justification would need to be rooted in objective, factual evidence—not generalized assumptions—that the hairstyle in question would actually present a materially enhanced risk of harm to the wearer or to others.

In other words, the Division will view employer restrictions of hairstyles closely associated with race with a great deal of scrutiny, and the burden will be on the employer to show real, material, and objective justifications for their policies. Accordingly, New Jersey employers should review the Division’s new guidance and consider reviewing their grooming and appearance policies, in addition to their practices, to ensure compliance.

As regular readers of our blog will already know, the issue of whether Title VII prohibits employment discrimination based on an employee’s sexual orientation or gender identity has been a hot topic in federal litigation for several years. Our blog has regularly covered these developments and often expressed that this question will likely require clarification from the Supreme Court.

Earlier this month, the Supreme Court heard oral arguments on three cases raising this question.  Two of the three cases involve employees being allegedly terminated due to their sexual orientation, and one case involves an employee being allegedly terminated due to gender identity. In the appellate courts’ decisions that the Supreme Court will now consider, the employees won on two cases (one of the sexual orientation cases and the gender identity case) and lost in the third (the second sexual orientation case).

As many excellent summaries and analyses of the arguments have already been published, we will not do so here. If you are interested in a thoughtful recap, please check out SCOTUSBlog’s Argument Analysis page for these cases. While there is no formal timetable for the Court to issue a decision, a number of prognosticators have stated a decision could come as late as June 2020. Of course, we will continue to monitor these cases and provide any updates.

In the meantime, however, please note that the Supreme Court’s decision in these cases will not affect any state laws that prohibit employment discrimination on the basis of sexual orientation or gender identity, whether the state laws do so expressly or under the umbrella of sex discrimination.

Partner Deanna Forbush of our Labor & Employment Practice Group recently secured a victory in the Nevada Supreme Court on a matter of first impression that will benefit all employers by establishing a two-year statute of limitations for wrongful termination claims.

The decision in Patush v. Las Vegas Bistro, LLC upheld the lower court’s decision to dismiss as time-barred a wrongful termination action filed by a former employee nearly four years after her termination.

In clarifying the applicable limitations period, the Nevada Supreme Court determined that wrongful termination claims – including those involving alleged violations of public policy – are analogous to personal injury claims and therefore subject to the standard two-year limitations period.

In so ruling, the justices rejected the appellant’s argument that her claims should be subject to the four-year limitations period for actions based on an unwritten contract. The court opined that wrongful termination claims “fundamentally seek redress for a violation of personal rights protected by public policy, not of a contractual dispute.”

Deanna, who rejoined Fox in July, had fully briefed the matter for client Las Vegas Bistro, LLC during her time at the Clark Hill law firm. Las Vegas Bistro is now a Fox client. She was assisted in the case by Jeremy Thompson, a Clark Hill associate.

Patti Ramseur and Alex Maultsby of Fox Rothschild’s national Labor & Employment Practice offer insights on employee classifications.

Engaging independent contractors instead of hiring employees is enticing… no overtime pay, benefits, tax withholdings, FICA obligations or legal liability for certain claims.

If you misclassify a worker, however, the penalties are great — back overtime pay, interest, liquidated damages, federal income tax liability, FICA contributions, IRS penalties, and more.

There are no clear, bright-line tests, and you cannot determine status based upon title.  It is about who has control.

If your worker does the following, the DOL may try to treat him or her as an employee:

  • Provides services that are integral to your business;
  • Has a more permanent, than short-term, arrangement;
  • Uses your tools/equipment and works in your facility;
  • Works exclusively for your company;
  • Does work largely controlled by the company;
  • Has little or no opportunity for profit and loss; and/or
  • Exercises little or no initiative, judgment, or foresight.

If you use independent contractors, take the time now to carefully analyze those positions.  If you have concerns about any classification, we are glad to help you work through those issues now, before the DOL comes knocking.

On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Guidance, in part, requires employers to make a case-by-case assessment of whether a criminal conviction is disqualifying.  So, does this mean that employers can now have blanket bans on applicants with criminal history?

The short answer is no.  First, this ruling and the related injunction are limited to saying the EEOC cannot use this Guidance against Texas.

Second, even if other states, or even private employers, are able to make a similar argument in the Fifth Circuit and other jurisdictions, employers would institute broad bans on criminal convictions at their peril.  A broad ban on applicants with criminal histories may violate the Fair Credit and Reporting Act (“FCRA”).  FCRA requires that before an employer takes an adverse employment action based on a credit report, the employer must send a pre-adverse action notice.  Lawsuits have been filed alleging violations of FCRA where an employer has a blanket ban on criminal convictions.  The theory is that the employer already decided not to hire an applicant prior to sending the pre-adverse action notice.

Another issue is that several states/municipalities have laws either prohibiting discrimination based on criminal conviction history or are so-called “Ban the Box” laws that may require an individualized assessment of whether the criminal history is disqualifying.

Employers faced with enforcement actions from the EEOC may certainly use this decision to argue against use of the Guidance.  However, it is doubtful, in the absence of a nationwide injunction, that the EEOC will back down from using the Guidance.

By Julianna Earp, Alexander Maultsby and Patti Ramseur

Strong business leaders keep their eyes open for unintended consequences—if our company adopts a new program, what could happen (positive or negative) that was not intended as part of our efforts?

Employers are seeing unintended consequences play out in their efforts to eliminate harassment in the #MeToo era–as employers have acted to train and educate their workforce, some males are developing concerns about engaging in mentoring relationships with female employees. Companies are losing the benefit of employees sharing valuable experiences and lessons be-cause communications are stifled. But, mentoring is as important today as ever—for both males and females. Just think about the many mentors (including of the opposite sex) who have helped you along the way.

While remaining sensitive to harassment issues, employers must challenge employees’ tendencies to simply retreat. Educate employees about the importance of mentoring relationships and appropriate boundaries. Here are a few common-sense tips for mentoring relationships:

  • Meet in public places.  This may include the corner coffee shop or a windowed conference room at the office.  Be transparent about where the meetings occur.
  • Meet at a respectable hour. Have you heard the saying, “Nothing good ever happens after 12:00 am?” Similarly, a good rule for men-tors/mentees is to avoid meeting one-on-one at night. Try to schedule meetings in the morning or during work hours. Only rarely schedule a meeting for after work and, if it is necessary, immediately after work.
  •  Focus on work issues. What are the mentee’s goals? What obstacles is the mentee currently facing in the workplace?
  • Again, focus on work issues. As a mentor, be very careful not to discuss physical appearance or family responsibilities. Remember, the value in mentoring comes from the ability to learn and grow from what is happening at work, not at home. Leave broader life coaching to life coaches.

Mentoring is admittedly tricky. A mentor is not a supervisor and is not conducting an appraisal. Discussions are more wide-ranging than when a manager is completing a performance evaluation. Yet, mentoring is critical to developing your workforce.

At this blog, we’ve written extensively about the proliferation of legislation at the state and local level to prohibit employers from inquiring about the salary or wage history of job applicants. As with state and local laws requiring employers to provide paid sick leave, laws restricting employers from making wage inquiries during the application process have become a growing trend across the country in the absence of federal action in this area. Sponsors of these measures describe their efforts as part of a broader public policy goal: closing the gender wage gap.

Now, Maine has joined the (growing) ranks of states that have passed laws on this point:

Earlier this month, Gov. Janet Mills signed a bill into law that makes it illegal in most cases to try to find out the salary history of a potential employee.

It’s not uncommon to ask for salary history even at the earliest stages of a job application. But studies have shown that the practice hurts women, people of color and people with disabilities, and it affects them more and more as they move through their careers, to the tune, in some cases, of hundreds of thousands of dollars. When the law takes effect 90 days after lawmakers adjourn, Maine will be the eighth state to prohibit the practice.

Maine’s new law prohibits employers from using or inquiring about an applicant’s compensation history, until after an offer of employment has been made that includes all terms of compensation. Nor may employers seek an applicant’s compensation history from the applicant’s prior employers.

However, the law does not prohibit applicants from voluntarily disclosing compensation history. There is also a carveout; the law does not apply to employers who make compensation history inquiries pursuant to a federal or state that “that specifically requires” disclosure or verification of compensation history for purposes of employment.

Critically, Maine’s new law states that an employer’s inquiry “either directly or indirectly” about an applicant’s compensation history is evidence of unlawful employment discrimination. In other words, employer practices that may have previously been routine have now been classified as discriminatory. Employers should review their hiring policies and practices in light of this new law and should continue to monitor the growing trend of these laws at the state and local level across the country.

If you are worried that, between the opioid epidemic and the expansion of medical and recreational marijuana laws, your employees will increasingly be coming to work under the influence, you are not alone. I’ve spoken on several panels lately where medical marijuana is a topic of discussion.  We also recently blogged on the issue.  Mostly, these discussions center around testing policies and whether accommodations have to be made.

I recently had the opportunity to be part of a panel talking about substance abuse in the workplace.  The panel was put on by NJBIZ.  For me, this was a very unique panel.  I did cover the usual issues about when you can test, what can be done with positive results, and what accommodations need to be made.  However, the interesting thing for me was that the rest of the panel were all addiction recovery specialists who talked about resources for employers and employees.

If you are interested, you can check out the video of the panel here.

Leave laws continue to be one of many jurisdictions’ top legislative priorities.

If you are going to be in Chicago next week, maybe I can help you understand your obligations under various leave laws.

I’m speaking at MAPI’s Benefits & Compensation in Manufacturing Conference on paid leave laws. Join me and other industry experts April 30-May 1 in Chicago for sessions and networking that will cover all aspects of benefits and compensation for manufacturers, including pay equity, health care trends and financial wellness. Learn more and register here:


Often times when I am speaking to a client about an employee’s requested accommodation for a disability, we are talking about leave as that is often the request most difficult to accommodate.  Another one that gives employers fits is “light duty.”  But what about some other types of accommodations?

A recent Pennsylvania case reminds employers that they may have to consider other types of accommodations as well. 

Last week, a jury found that Premier Comp Solutions, Inc. had violated the Americans with Disabilities Act when it failed to give a former billing assistant extra breaks for her to address anxiety caused by her post-traumatic stress disorder. The company denied the breaks, mistakenly thinking that it did not have to provide an accommodation for her anxiety disorder.  The jury awarded plaintiff $285,000 in damages.

I have limited facts about this case, but can say from experience, that employers may be quick to dismiss accommodation requests related to anxiety where the requested accommodation is to provide a “less stressful” environment.  Yes, it is impossible to provide employees with a stress-free environment and there are plenty of cases that hold that is an unreasonable accommodation.

However, when faced with such requests, employers should make sure that they are asking questions and otherwise engaging in the interactive process.  For example, they should get specifics (backed up with medical documentation) as to what is requested and what specifically is meant by a “less stressful” environment.  Sometimes, employers may find that means something like here, which is additional breaks.  Perhaps, it might also mean moving an employee’s work station to a more quiet area. In other words, it may mean an accommodation that can be granted and, more importantly, would be difficult to deny based on an undue hardship analysis.

Sometimes, however, even after discussion it appears the request is simply to make the employee’s work stress-free, which cannot be accommodated.  Employers will not know until they open the discussion.  So, before dismissing requests out of hand that seem impossible, an employer must first engage in the interactive process.