Employment Discrimination
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State laws on employment contracts differ greatly. In New Jersey, employment (absent a written contract) is at will. This means that an employer can hire and fire an employee and an employee can quit at any time. An employer can legally make decisions that adversely affect an employee for the right reason, the wrong reason or no reason so long as the reason is not an illegal reason. Illegal reasons include (but are not limited to) those based on prohibited factors such as, race, color, religion, age, gender, national origin, sexual orientation (in some jurisdictions), disability, and retaliation for filing a discrimination complaint, Vietnam veteran status, and pension eligibility status. A WRITTEN CONTRACT CAN CHANGE THE TERMS OF EMPLOYMENT FROM THAT OF EMPLOYMENT AT WILL. (Parenthetically, there can be a violation of the employment contract without discrimination. Either the employer or the employee can breach a written contract. The courts in New Jersey have held that an employer is bound by its employment manual (absent a disclaimer). The courts in New Jersey have held that if an employer induces an employer not to take another job by making certain promises, those promises are enforceable. You should be aware that discrimination is a large area of employment law, but not the only source of relief.)

Federal law against employment discrimination is enforceable in every state regardless of that state's employment law against employers with over 15 employees. New Jersey also has its own laws against discrimination.

A person who believes he or she has been discriminated against must be able to prove the discrimination whether he chooses Federal remedies or state remedies. As discrimination becomes more and more subtle these days and in a tight job market, this is not an easy task. At the first suspicion that employment decisions are being made based upon one's status as a member of a group, one should start gathering evidence proving the discrimination.

For example, a person age 58 who has been employed with the same company for 30 years suspects that he is about to be terminated. He is excluded from meetings, an employee 30 years younger appears to be in training for his job, his superiors manufacture defects in his performance, evaluations deteriorate and often, he is harassed. Other mature workers who have been with the company for years are disappearing fast, replaced by much younger workers and/or "temporary" workers called "consultants" from temporary agencies. The employee has every reason to believe that he is designated for termination. He thinks that it may be the best for him to retire and take his pension and go on with his life. After all, there are things to be said for collecting a pension while being gainfully employed elsewhere.

For example, an older man or woman seeks temporary work through an employment agency. He/she is told that employers only want to hire young men as temporary workers because they are looking for permanent workers. He/she is never called for an interview or a job.

For example, a qualified woman sees less qualified younger white men being promoted while she languishes for years in a position which appears to be an entry level position for men. Her evaluations have been "excellent" for years and her accomplishments are many. She has asked for a promotion, but promotions are privately predetermined.

For example, a qualified young black man applies to an employer whose work force includes a few black women and white men and women. He is never even granted an interview and is told the job was filled. He later sees the advertisement for the same position in the paper setting forth qualifications he meets.

Do these people have any recourse? Yes they do, if they can prove that the employment decision was based not on legitimate business reasons but on prohibited factors such as, race, color, religion, age, gender, national origin, sexual orientation (in some jurisdictions), disability, retaliation for filing a discrimination complaint, Vietnam veteran status, and pension eligibility status.

A current employee or job applicant must first determine that the adverse employment decision is not due to poor job performance, lack of qualifications or another legitimate business reason. He/she should be able to prove his/her qualifications for and ability to do the job. He/she must gather evidence (without "stealing" the employer's proprietary documents). The employer most certainly is creating a paper trail to justify his decisions so the employee or applicant must create a paper trail of his own.

Evidences can include testimony of witnesses, evaluations, letters of commendation, job descriptions, internal memorandum and other important documents, including employment manuals, and newspaper advertisements. The employee must obtain the names, addresses and telephone numbers of coworkers and potential witnesses. The employee must keep a diary of daily events, daily work projects, daily instructions from superiors, and daily work completed. He/she should document the high quality of his/her own work. He/she should learn the name, addresses, telephone numbers and work credentials of other workers who have been favored over him/her and attempt to learn the official reason that person was favored. He/she should watch newspapers for advertisement for employment, learn the names of the employment agencies who send in new workers and learn how employment decisions are actually made. He/she should know the organizational structure of his employer.

The job applicant must prove that he applied for the job, was rejected despite his qualifications and ability to do the job and the job was filled by someone who was less qualified who was not a member of a disfavored group. He must keep copies of all his applications, memos of all telephone and other conversations, copies of advertisements for the positions and attempt to pin the employer down to a reason why he was rejected. He should try to learn the name, address and credentials of the person who was hired and the official reason that person was hired.

If the employee or applicant believes proof of discrimination exists, he should consult with an attorney at the earliest stage to effectively prepare the case. .

The employee can proceed under Federal law or he can proceed under state law. Federal law can be time-consuming because the employee must first file a complaint with the Equal Employment Opportunity Commission and wait 180 days before he can get a Right to Sue Letter which are "conditions precedent" to filing a complaint in the United States District Court. Under New Jersey law, the employee has a irrevocable choice of filing a complaint with the Division on Civil Rights, waiting 180 days and then transferring the case to the Office of Administrative Law, or, in the alternative, of immediately filing suit in the Superior Court of New Jersey. The employee should consult with an attorney to determine which course is best for him. A determining factor may be what other claims the employee has against the employer. For example, if the employee has an ERISA (pension law) claim to join with his discrimination claim, he may have no choice but to go into Federal court. If he has a breach of written contract claim, state court may be the best court.

What must be emphasized here is that there must be proof, not a mere suspicion, of discrimination. Suing an employer requires a strong and long term commitment which should not be undertaken lightly.

Sandra D. Helbig
Attorney at Law
16 Highland Place
West Orange, N.J. 07052
(201) 731-9828