Articles Posted by Joshua L. Weiner

In a unanimous opinion, the New Jersey Supreme Court recently held that a non-disparagement provision in a settlement agreement that prevented a former employee from revealing details about allegations of sexual harassment, sex discrimination and retaliation was against public policy and cannot be enforced.

The plaintiff, a former police sergeant, appealed a trial court order enforcing a non-disparagement provision in a 2020 settlement agreement reached in her employment discrimination case. Under the non-disparagement clause, the plaintiff was barred from making any statements “regarding the past behavior of the parties” that would “tend to disparage or impugn the reputation of any party.”  The agreement clearly stated that the provision extended to statements to the media, government offices and the general public.  After the settlement was reached, the plaintiff was interviewed by a reporter for NBC’s Channel 4 News, where she stated that the police department had not changed because “it’s the good ol’ boy system,” among other things.  The department and various officers then filed a motion to enforce the non-disparagement provisions of the agreement.

The trial court granted the defendants’ motion, ordering the plaintiff not to give further interviews or to make disparaging statements.  The judge declined to award the roughly $23,000 in damages sought by the defendants but awarded counsel fees of $4,917.50 for the plaintiff’s breach of the clause.  The Appellate Division affirmed in part and reversed in part, holding that while the terms of the non-disparagement provision were enforceable, the plaintiff did not break them during the television interview.

On June 29, 2023, a unanimous U.S. Supreme Court issued its decision in Groff v. DeJoy, clarifying employers’ obligations to accommodate employees’ religious practices under Title VII of the Civil Rights Act.  The Court reinterpreted the meaning of “undue hardship” and held that Title VII requires an employer who denies an employee’s request for a religious accommodation to show that the burden of granting an accommodation would result in “substantial increased costs in relation to the conduct of its particular business.”  In doing so, the Court rejected a commonly applied, employer-friendly interpretation that an undue hardship exists if an employer can show that the accommodation would result in “more than a de minimis cost.”

The More Lenient “Undue Hardship” Standard Applied by the Lower Courts:

Under Title VII, employers are required to accommodate an employee’s religious practices unless doing so would impose an “undue hardship on the conduct of the employer’s business.”  In Groff, a postal carrier who was unwilling to work on Sundays because of his religious practices sued his employer (the United States Postal Service), alleging that it could have accommodated his Sunday Sabbath without undue hardship.  Initially, Groff’s position did not include Sunday work.  This later changed, however, causing Gross to transfer to a small postal station that did not make Sunday deliveries.  Once this station began making Sunday deliveries, however, Groff’s Sunday deliveries were redistributed to other workers.  He was disciplined for failing to work on Sundays, and he eventually resigned.  The trial court granted the employer summary judgment, which the Third Circuit Court of Appeals affirmed, finding that exempting Gross from Sunday work resulted in more than a de minimis cost, as the exemption had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.”

In response to an increasingly older workforce and higher ages in which employees are choosing to retire, on October 4, 2021, Governor Murphy signed a bill expanding the scope of the New Jersey Law Against Discrimination (“LAD”) by eliminating certain decades old provisions that permitted employers to make age-based decisions in certain circumstances. For private sector employers, this legislation amends the LAD to extend protections to older workers by: (1) eliminating a provision of the LAD that permitted employers to not hire or promote employees over 70 years of age; and (2) expanding the remedies available to an employee unlawfully forced to retire due to age to include all remedies available under the LAD.

These amendments are a significant alteration of the LAD, and now places age on equal terms with other recognized protected categories, including but not limited to race, gender, national origin, disability, religion, and sexual orientation. While the LAD has historically been touted as one of the most progressive anti-discrimination laws in the country, it nonetheless placed age on a separate footing with other protected categories, paradoxically putting it at odds with much less progressive State and federal anti-discrimination laws. Clearly, this new legislation seeks to remedy that contradiction.

These amendments will serve the laudatory goal of protecting older workers against workplace discrimination, and employers refusing to hire or promote otherwise qualified individuals simply because they are over age 70 may find themselves defending age discrimination claims. Thus, employers are advised to review and update employee handbooks and workplace policies to ensure compliance with the LAD amendments. Moreover, employers must be mindful of these amendments when making any personnel decisions affecting older employees to ensure they are made for legitimate business reasons unrelated to age.