Understanding Other Forms of Discrimination

Written by: Beth P. Zoller, Esq.

Employment law is a fascinating crossroads of legal issues.  

In today's workforce, under federal laws such as Title VII of the Civil Rights Act of 1964 (Title VII) or state laws such as the New Jersey Law Against Discrimination (NJ LAD), an employer may not refuse to hire or terminate an individual based on their race, sex, religion, national origin, among other factors. as doing so could give rise to a lawsuit and potentially expose the employer to legal liability in the form of penalties and damages.    

Both employers and employees, however, need to be increasingly aware that discrimination and harassment can manifest in more subtle ways. It is important to understand that certain requirements, comments, remarks, or even compliments that are seemingly well-intended or innocuous can have a detrimental impact in the workplace and lead to claims of discrimination and harassment. An employer may have a legitimate business reason and justification for implementing a professional dress code policy, seeking employees who are computer savvy and up on the latest technology or ensuring that employees are available and present for work, but employers need to be careful not to violate discrimination laws.  

 One of the hottest legal trends is the proliferation of laws that amends

the definition of “race” to include “protective hairstyles and hair textures.”

One of the hottest legal trends these days is the proliferation of CROWN Acts (Create a Respectful and Open Workplace for Natural Hair Acts) across the country.  CROWN Acts amend the definition of "race" under equal employment opportunity statutes to include "protective hairstyles and hair textures," and essentially prohibit employers from discriminating against applicants or employees based on hairstyles inherent to or culturally connected to their race or maintaining a dress code policy that prohibits racially based hairstyles such as dreadlocks or twists.   

New Jersey was one of the first states to enact a CROWN Act making it unlawful to target individuals at work, school, or in public places due to hair appearance.  The NJ CROWN Actamends the NJ LAD to prohibit discrimination on the basis of "traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles." Protective hairstyles" is defined to include "such hairstyles as braids, locks and twists." Similar laws have passed in almost one-third of the states and a federal measure is now being considered in Congress that would essentially amend Title VII to offer similar protections. While employers may implement a dress code or hairstyle policy, employers should be careful not to discriminate based on hairstyles associated with race or ethnicity.  

 Employee protection measures like the CROWN Act are just one part of the front-line battles taking place today. With individuals living longer, we are witnessing workplaces that may have up to five generations of workers ranging from Generation Z to older employees. According to a Census report released in 2021, labor participation by those 75 and older rose in 36 states between 2010 and 2019. 

 However, both federal and state laws are cracking down on pre-employment inquiries with respect to job ages, birth dates, or graduation dates, as well as advertisements designating a preferred applicant age range or including terms such as "young," "college student," "recent college graduate," or other terms that imply a preference for younger employees such as "digital native. Moreover, federal law allows for age discrimination against companies with at least 20 employees, and many states offer additional or greater protections. In 2021, New Jersey passed legislation to combat age discrimination.  This legislation removes provisions that allow an employer to refuse to hire or promote someone over 70.  Moreover, other states have offered additional protection by allowing companies with less than 20 employees to file an age discrimination claim.

In addition, the increase in remote work and the COVID pandemic have made lawmakers more cognizant of family obligations and the importance of avoiding discrimination against employees who are caregivers. While all employers have a vested interest in employees showing up for work and being present, they must avoid discrimination, including denying females with young children the same workplace opportunities as males with young children; reassigning a new parent to less desirable tasks assuming they will be less committed to their job; asking job applicants whether and when they intend to have children; and failing to promote an employee for fear that family caretaking responsibilities will interfere with their ability to perform the job.   

While federal law does not explicitly prohibit caregiver discrimination, and it must be tied to another protected class status (such as sex or disability), state and local laws such as that of New York City may provide greater protections. 

The increase in remote work and the COVID pandemic have made lawmakers more

cognizant of family obligations and the importance of avoiding discrimination

against employees who are caregivers.

Lastly, while an employer may have well-intentioned concerns about the health of pregnant women and seek to protect their health and the health of their unborn child, it may not single out such workers for adverse employment action such as involuntary leave or transfer from a potentially dangerous position or environment.  Federal and state laws require that employers treat pregnant workers the same as non-pregnant employees who are similar in their ability or inability to work. For example, during the COVID pandemic, the EEOC released guidance specifically prohibiting such actions even if motivated by benevolent concerns as an intent to protect pregnant women from what an employer perceives as a risk does not excuse an action that otherwise amounts to unlawful discrimination.   

So, what's the takeaway? Employers need to be careful, and employees should be aware of these other legislatively defined forms of discrimination as they may create unintended workplace issues. A productive and healthful work environment is one where each worker has a chance to shine and contribute based on their abilities without fear of favor or prejudice. 

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Beth P. Zoller is counsel at KSBranigan Law, P.C., a woman-owned law firm in Montclair, where she handles workplace investigations, employment compliance, discrimination, harassment and unconscious bias training, and equal pay audits.  She is also an Adjunct Professor in the Seton Hall University School of Law Master of Science in Jurisprudence Program where she teaches online classes on employment and privacy law and workplace investigations.