New Jersey Employment Lawyer Blog
Sometimes, race discrimination at work is “in your face,” like nooses or the use of the N-word. Often, though, it’s subtle. It may be little things, including seemingly facially neutral things, that unfairly hold back Black workers and/or push ahead those employees’ white coworkers. Whether the discrimination that adversely affected your employment was something overt or something less obvious on its face, it’s damaging and it may be the basis of a winning discrimination case. By contacting a knowledgeable New Jersey race discrimination lawyer, you can find out what options the legal system has for recouping compensation for the illegal harm you suffered.
T.W.’s race discrimination case was one of the latter kind. She was a Black woman who worked for the Office of the Attorney General in the Law and Public Safety Department, where she held the title of “personnel assistant.” As is common with many public employers, the department had multiple classes or grades of the same job title. In the department, personnel assistants ranged from “PA4,” the lowest rank, to “PA1,” the highest rank.
She began as a PA4 in 2004. By early 2018, she had risen to PA2 but, according to her lawsuit, the department had overlooked promoting her to PA2 for two years. Additionally, the department allegedly slowed her rise to PA1 by removing her subordinate and assigning that worker to a white employee. (That reassignment harmed T.W.’s career because it deprived her of the opportunity to accrue supervisory experience, which the employer required before promoting a personnel assistant to PA1.)
Furthermore, the department allegedly slowed T.W by transferring her to a different unit in late 2018. While in that role, she “could not apply for a PA1 position, even though similarly situated younger, white employees could.”
The assistant’s lawsuit attacked the discrimination she allegedly endured in several ways. She asserted claims for race and age discrimination in violation of federal law and race and age discrimination in violation of the New Jersey Law Against Discrimination.
Your Employer Can’t Use Discrimination to Blunt Your ‘But-For Causation’ Argument
The assistant’s federal race discrimination claim required that she establish what the law calls “but-for causation.” That means that the worker must show that “but for race, [she] would not have suffered” the harm alleged.”
The employer, in its motion asking the court to dismiss the case, argued that she failed to meet this standard because her allegations left open the possibility that it failed to promote her because of age and/or because she used family leave to care for a daughter.
As the judge explained, this sort of argument doesn’t work. When an employer attacks the sufficiency of a worker’s pleadings regarding “but-for causation,” it may rely on non-discriminatory reasons for its failure to promote the plaintiff. It may not, however, rely on other discriminatory base s to make its argument.
Proving ‘Disparate Impact’ Under the NJLAD
One of the assistant’s state law claims, which also survived the employer’s motion to dismiss, alleged that she was the victim of workplace policies that had a disparate impact. To plead this kind of claim properly, a worker must point to a workplace policy, rule, or standard that appears neutral on its impact but that, in its application, disproportionately harms people of that protected class.
Part of proving that disproportionate harm means demonstrating that the “practice caused observable statistical differences affecting the protected class.” While the law requires a worker who suffered race discrimination at work to present statistical evidence that backs up their assertions, the law does not require them to do so in their complaint and a failure to put that evidence in a complaint is not a valid basis for dismissal of the worker’s claim.
T.W.’s case relied upon her employer’s “merits-based” system of promoting employees. According to her complaint, the system was arbitrary, containing “loopholes” that permitted the employer, under the guise of “merit,” to “fast-track younger, white applicants for promotions while leaving similarly situated older, African American applicants behind.”
The system used a “merits-based exam” as a central criterion for promoting employees, but it also allegedly allowed the employer, “arbitrarily and discriminatorily,” to bypass those exam results and instead grant promotions based on education and experience.
These allegations were enough to make up a viable complaint of disparate impact under the NJLAD.
Instances of illegal workplace race discrimination run the gamut from the very blatant to the very subtle. Wherever on that spectrum your situation falls, know that, with the right proof, you have the right to pursue a race discrimination lawsuit. The skilled New race discrimination attorneys at Phillips & Associates are here to help you do so. We’ve helped countless New Jersey workers harmed by illegal race discrimination to get results, and we’re ready to get started on your case. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.