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New Jersey Law Against Discrimination
(LAD) prohibits employers from discriminating in any job-related action, including recruitment, interviewing, hiring, promotions, discharge, compensation and the terms, conditions and privileges of employment on the basis of any of the law's specified protected categories. These protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses. The LAD prohibits intentional discrimination based on any of these characteristics. Intentional discrimination may take the form of differential treatment or statements and conduct that reflect discriminatory animus or bias.
Moreover, an employment policy or practice that is neutral in its terms may be deemed unlawful if the policy or practice has an adverse impact on protected groups. However, the disparate impact may be lawful if the employment policy or practice meets an important, legitimate business need that cannot be served with a non-discriminatory measure. For example, screening out applicants for employment based on certain physical traits, such as setting a minimum height requirement, may exclude disproportionate numbers of women and people of certain national origins or ancestries. If the height requirement has a disparate impact on a protected group and is not related to an applicant's ability to perform important job duties, it may be deemed unlawful. To establish the lawfulness of a policy or practice that has a demonstrated disparate impact, an employer would have to establish that the policy is job related and consistent with business necessity, and that effective alternative practices are not available.
A physical requirement is more likely to be regarded as unlawful if there is an alternative measure of job related abilities, such as strength or stamina tests, that would provide a more accurate evaluation of a candidate's ability to perform without screening out qualified members of groups that historically have been excluded from particular jobs.
The LAD also prohibits harassment based on protected characteristics such as race, sex or nationality. Under the LAD, sexual harassment includes unwelcome sexual advances, requests for sexual relations or other verbal or physical conduct of a sexual nature. There are generally two types of sexual harassment. Quid pro quo harassment occurs when an employer, or an employer's agent, implicitly or explicitly attempts to make submission to sexual demands a condition of employment. Thus, an employee may perceive that he or she must tolerate sexual advances or engage in a sexual relationship in order to continue employment, to achieve advancement, or to avoid adverse employment consequences such as poor evaluations or demotions. Similarly, it is unlawful for an employer or an employer's agent to condition favorable treatment such as promotions, salary increases, or preferred assignments, on an employee's acceptance of sexual advances or relations.
Hostile work environment sexual harassment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her gender. Such conduct creates an unlawful work environment when it is severe or pervasive enough to make a reasonable person of the employee's gender believe that the conditions of employment have been altered and the working environment has become hostile or abusive. The conduct does not have to be sexual in nature and does not have to involve physical contact. For example, if a woman is subjected to non-sexual taunts or adverse treatment because of her gender, her work environment may be deemed unlawfully hostile and abusive. This analytical framework may also be applied to hostile work environments created because of an employee's race, nationality, creed, disability, or other characteristics enumerated by the LAD. For example, racial slurs or offensive comments or jokes about a person's dress, culture, accent or ethnic background may be severe or pervasive enough to create a hostile or abusive environment that violates the LAD.
Finally, the LAD prohibits employers from denying employment opportunities to people with disabilities unless the employer reasonably determines that the nature and extent of a person's disability reasonably precludes his or her safe performance of a particular job. In order for the decision to be reasonable, the employer must determine that the employee's disability precludes the performance of essential duties, not merely hinders the execution of some tasks. Furthermore, before deciding that a person's disability precludes his or her safe performance of a particular job, an employer must first consider the possibility of making reasonable accommodations, that is, adjustments to the work assignment or workplace, that may enable the person to perform the essential functions of his or her position.
Federal and state courts have reasoned that an employer's obligation to provide reasonable accommodation may sometimes require an employer to request information about an employee's abilities and need for accommodation. Accordingly, if an employer has reason to believe that an employee has a disability, the mere fact that the employee does not request an accommodation may not relieve the employer from the responsibility of providing reasonable accommodations that will enable the employee to perform the essential functions of his or her job.
An accommodation may be required even if it causes the employer some inconvenience or cost. An employer must make reasonable accommodations to the limitations of an employee or applicant with a disability unless the accommodation imposes an undue hardship on the operation of its business.
On the other hand, an employer is generally free to distinguish between applicants and employees on the basis of their qualifications, competence and job performance, provided reasonable accommodations are made to qualified people with disabilities.
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