By Jennifer Vorih, Esq., Ty Hyderally, Esq.

With all of the recent news of police brutality against African-Americans, anyone who has been on the internet or opened a newspaper lately should be aware that racism is alive and well in this country. But many New Jerseyans may not be so aware that race discrimination in employment also continues to this day. Race discrimination and harassment occur in workplaces throughout New Jersey on an outrageously regular basis. These include everything from overtly racist acts, such as hanging nooses where African-American workers will find them, to more subtle actions which are still pointed at employees of color, to employment policies which have a disparate impact on people of color, even without conscious intent.

African-American workers in New Jersey have reported finding nooses in their workplaces in 2019 in Madison, in 2018 in East Rutherford, in 2017 in Englewood, and in 2015 in Atlantic County, among many other examples. African-American and other workers of color in New Jersey are also often subjected to racist epithets. The New Jersey Law Against Discrimination (“NJLAD”) was enacted to eradicate the cancer of discrimination in the workplace and elsewhere. The NJLAD is interpreted liberally, to hold employers responsible. Thus, employers can be held responsible for such overt acts of racism, even if they were undertaken by coworkers and not supervisors. It is illegal for employers to allow a work environment which is hostile to employees because of their race or ethnicity.

Of course, employers are also not allowed to fire, discipline, fail to promote, or refuse to hire employees because of their race or ethnicity. These situations occur with alarming regularity in New Jersey and across the country. Most employers are aware enough of anti-discrimination laws to avoid saying that they are basing decisions on race, even if they are conscious of their racism. Other employers are unaware of the racism underlying their desire for “clean-cut” and “articulate” employees, or their aversion to “urban” candidates, or those with braids or dreadlocks. But whether employees are aware of their racism or not, it is still illegal in New Jersey to make employment decisions based on race or ethnicity.

Even employment policies which do not appear to be racist or race-based can be illegal, if they have a disparate negative impact on workers of color. However, if the employer can show that a policy, such as a height requirement, which disproportionately impacts certain ethnic groups, is necessary to meet an important and legitimate business need which cannot be met otherwise, the policy can be allowed to continue.

Although racism and race discrimination continue in New Jersey, it is important to know that the NJLAD is in place to help us root out such discrimination in the workplace, whether that discrimination is purposeful or unintentional, subtle, or overt. Employees are often afraid to speak out about discrimination for fear of employer retaliation, even though retaliation for complaining about discrimination is also unlawful under the NJLAD.  However, recent events are moving the country toward denouncing racism wherever it arises. The Black Lives Matter movement has not only impacted society at large, but likely will embolden employees to speak out against racism occurring in the workplace. 

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.