In early January, parallel Senate and Assembly bills (A580 and S334) were reintroduced in another attempt to make a number of significant changes to the Law Against Discrimination (LAD). (Prior unsuccessful versions of these bills were proposed in 2004, 2006, 2008 and 2010.) Among the many revisions sought by the legislators:
- The bill would bring independent contractors within the coverage of the LAD as if they were traditional employees;
- The bill would make it unlawful for an employer, as a condition of employment or continued employment, to require an employee to waive his right to trial by jury (in essence, banning mandatory arbitration agreements), to change the statute of limitations that would otherwise be applicable, or for an employee to be required to waive any rights under the LAD as a condition of employment or continued employment;
- The bill would prohibit “English-only” rules in the workplace unless two requirements are met: (1) the language restriction is justified by a business necessity, and (2) the employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction.
- The bill would add “familial status” as a protected category;
- Although the LAD has been interpreted by the courts to require employers to provide reasonable accommodations for disabilities (including pregnancy-related complications) unless to do so would be an undue hardship on the employer, the bill would codify that requirement. In addition, the bill would go further by requiring employers to provide reasonable accommodations for normal pregnancies, unless to do so would impose an undue hardship on the employer;
- The bill would delete language in the law that currently allows an employer to refuse to hire or promote a person over age 70, and also would repeal the provision of the LAD that presently allows a public or private institution of higher education to force retirement upon any employee who has attained 70 years of age;
- The bill would eliminate the requirement that a person claiming a violation under the LAD must file a verified complaint and that a respondent must filed a verified answer; and
The proposed bill would for the first time add an accessibility component to the LAD, requiring places of public accommodation (retail stores, health clubs, etc.) to provide reasonable accommodations for the disabled (unless to do so would create an undue hardship). Public accommodations apparently would be required to engage in the interactive process with any disabled customers who request an accommodation, and there likely would be no ADA Title III standard accessibility guidelines to follow when making such individualized determinations. Making matters more problematic for public accommodations is that while ADA Title III has no private damages provision (only injunctive relief is available), the LAD affords private aggrieved individuals with a full range of uncapped damages, including compensatory, economic and punitive damages and attorneys’ fees.