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The Legal Importance of Interactive Process

One of the most important duties that is imposed by anti-disability discrimination laws is the obligation to accommodate a disabled employee in performing the essential job duties of a desired employment position. As part of that obligation, both federal and New Jersey state law impose a duty upon the employer to engage in an interactive dialogue process after an employee requests an accommodation as part of the required effort to work towards finding a suitable accommodation. One of the areas where employers get in the most trouble in complying with anti-disability discrimination requirements is in failing to adequately engage in this required interactive process.

Under the law, the interactive process is deemed to be a two-way street where both the employer and the employee bear a good faith duty to attempt to work constructively in an effort to either find a potential accommodation or determine that no such accommodation is available in the given circumstances. The reason that failing to follow the process can get employers in so much legal trouble is because it is an easy employment law requirement for judges to know and understand and in almost every conference I have had with a judge one of the first questions that I get asked in these cases is was an interactive process undertaken and how did its outcome affect the dispute at hand.

So, what does the interactive process require? It requires active dialogue and the exchange of possible ideas to resolve an accommodation request. While many employers would love to deny an accommodation request summarily, employers are wise to take advantage of the opportunity of utilizing the process to gain meaningful information from the employee, such as medical information and possible alternative accommodation options, that may allow for a better resolution of the request. Establishing as an employer that you made every effort to work with a disabled employee to find a workplace accommodation serves to buttress the defense against any discrimination lawsuit for failing to provide those requested accommodations.

Along with actually engaging in the interactive process, documentation of those efforts is also critical to establishing needed defenses if a challenge is raised to process compliance in any discrimination case. Where possible, exchange accommodations ideas and requests for information through writings, such as emails, with the requesting employee, so you have that needed paper trail of compliance regarding your communications through this process. If the interactive process is more verbally oriented, always make sure to follow up in some writing what was addressed as part of the process, so you have confirmatory documentation of what was discussed and how issues were ultimately addressed. I am also a big fan of using some form of written documentation in describing the outcome of the process, whether this is a denial or acceptance of an accommodation request. When there is a denial, the written documentation should explain why. When any type of accommodation is granted, there should likewise be documentation outlining the scope of the agreed upon accommodation so there is no confusion regarding how job duties have been accommodated. In both situations, this is again effective use of documentation to set up possible defenses should any legal issues arise out of the interactive process.   

Therefore, in sum, always remember the importance of the interactive process whenever a workplace accommodation request is raised by an employee in your workplace. Engage in that process in good faith and always document your efforts as part of the process to establish a written history of your efforts in case any subsequent litigation ensues. You will be happy that you did.            

Defense Win: Court Rejects Hostile Work Environment Claim Based on a Single Slur

Determining what constitutes a “hostile work environment” is rarely straightforward. If a coworker makes a single offensive comment based on an employee’s membership in a protected class, and the employee is deeply offended, does that rise to the level of a hostile work environment? What about two comments? Three? As attorneys often say, it depends.

Summary of the Case:

In the case Charles v. County of Lycoming, Pennsylvania et al., No. 4:21-CV-00883 (M.D. Pa. Dec. 31, 2025), the U.S. District Court for the Middle District of Pennsylvania addressed this question and concluded that a single offensive remark, standing alone, was not enough.

The plaintiff, Ruth Charles, is Asian and had been employed as a clerk in the Lycoming County District Attorney’s Office since 2013. On April 6, 2020, a coworker made a comment that included the racial slur “chinks.” The remark was loud enough for Charles and another employee to hear. Both employees reported the incident to a supervisor. Charles reported the incident by e-mail stating: “I am Asian and that word is one of the most racist/demeaning words you could use towards an Asian person. I understand it’s not about me, but it was very inappropriate to hear.”

The supervisor reported the incident to Human Resources and the District Attorney and met with both Charles and the coworker who made the comment. After that meeting, there were no further reports of racially offensive remarks in the workplace.

Later that month, on April 30, an assistant district attorney sent an email to the District Attorney identifying four instances in which Charles failed to perform tasks and acted inappropriately. On May 1, the assistant district attorney reported additional performance issues related to Charles. Also on May 1, Charles’ supervisor sent an email to the District Attorney describing Charles as extremely hostile during a meeting and noted her use of inappropriate language. A paralegal separately documented concerns about Charles’ work performance via email. Specifically, that Charles was sending her work to be completed elsewhere and was questioning her responsibilities. That same day, Charles was informed that her employment was terminated due to insubordination.

Charles subsequently filed suit, alleging violations of Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act (“PHRA”). She claimed she was subjected to a race-based hostile work environment and that her termination was the result of discrimination and retaliation for complaining about the racial slur.

The Court dismissed Charles’ hostile work environment claim, finding that she failed to establish that she was subjected to harassment that was severe or pervasive, which is a required element of such claims. While the court acknowledged that a single incident can be sufficient to create a hostile work environment in rare cases, it emphasized that the incident must be “extreme enough to amount to a change in the terms and conditions of employment.” In this case, there was no evidence that the comment interfered with Charles’ work performance or injected ongoing hostility into the workplace. As the court summarized, this was “the unfortunate case of an isolated offensive comment over an employee’s seven years of employment that does not rise to the level of creating a hostile work environment.”

Charles’ discrimination and retaliation claims also failed. The court found no evidence that her termination occurred under circumstances giving rise to an inference of discrimination or that it was retaliatory in nature. The employer articulated legitimate, non-discriminatory reasons for her termination, namely, repeated incidents of insubordination, and Charles failed to show those reasons were pretextual.

Key Takeaways for Employers:

While offensive language has no place in the workplace, it is a rare and extreme case in which a single incident, without more, will rise to the level of a hostile work environment under Title VII or similar state laws.

Federal Appeals Court Affirms Ruling That Recreational Marijuana User Had No Legal Remedy Under NJ CREAMMA Law for Failure to Be Hired

As many of you might remember, in the spring of 2023, I wrote a blog on a very controversial ruling in a case involving a critical issue of first impression under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, (“CREAMMA”). In that blog, I discussed how a federal judge in Camden, New Jersey ruled that remarkably the CREAMMA law did not allow an employment applicant whose job offer was revoked due solely to his use of recreational marijuana to sue for wrongful failure to hire, despite the fact that this law specifically precludes employers from taking adverse action against employees or job applicants solely based upon that very use. The ruling in Zanetich v. Wal-Mart Stores East, Inc. was ultimately appealed to the federal appeals court for the 3rd Circuit where recently the lower court’s decision of a lack of a private cause of action under CREAMMA was ultimately affirmed, meaning that at present, there is no private cause of action right to judicially enforce CREAMMA’s antidiscrimination provisions.    

As a refresher on the case’s factual background, the Plaintiff had filed a job application for employment with the Defendant employer. An offer of employment was conditionally extended by Defendant, subject to a negative drug test. Plaintiff’s drug test came back positive for recreational marijuana use. Defendant thereafter proceeded to revoke the previous extended job offer, based solely on the drug test showing positive use of marijuana only.

Thereafter, the Plaintiff filed a class action suit on his own behalf and other similarly situated employees who had wrongfully had a past job offer revoked exclusively because of a positive drug test result for legalized marijuana use in New Jersey. The Defendant eventually moved to dismiss the lawsuit, claiming that there was nothing expressly included in the CREAMMA law that allowed for the bringing of any sort of employment discrimination lawsuit asserting a violation of CREAMMA. Remarkably, despite its prohibition on taking any sort of adverse employment action against an employee or applicant for employment based solely upon that person’s use of legalized marijuana, there is indeed nothing in the law that expressly gives affected employees the right to bring such a lawsuit. Rather, the CREAMMA law created an agency, the Cannabis Regulatory Commission, and gave it the right to regulate, investigate, and prosecute violations of CREAMMA. This provision of the law ultimately led the lower court to conclude that the legislature intended for that agency to be the sole and exclusive designated forum to address these kinds of cannabis employment discrimination claims.

Like the District Court, the Appeals Court relied on well-established law that is utilized when determining whether an implied cause of action can be created where one is not expressly statutorily allowed. The Appeals Court agreed that ultimately the factors to be considered under that case law for supporting the finding of an implicit cause of action for wrongful failure to hire under CREAMMA were absent in the case and did not require the creation of an implied cause of action for job applicants under that statute.  

Next, the Court considered the Plaintiff’s alternative argument that he could pursue his case for wrongful non-hiring as a Pierce claim that permits an employee to challenge an employer’s actions on public policy grounds. In rejecting this claim as well, the Appeals Court ruled that applicants for employment cannot bring a Pierce public policy claim because such claims have long only been legally recognized for those who are already employed and not mere applicants for employment. Finally, the Plaintiff also asked the Appeals Court to utilize a special procedure that would have enabled the case to be sent to New Jersey Supreme Court to get a ruling on this unique state court legal issue. That too was rejected as being unnecessary as there was no significant matter of public importance in the eyes of the Appeals Court and it would serve to only further delay the ultimate resolution of the case.  

The foregoing decision will no doubt continue to surprise many seasoned labor and employment practitioners, and one can reasonably expect that this issue will be addressed by the New Jersey legislature at some point. Also, one significant issue left open is whether this case would have been decided differently had an actual employee been terminated for marijuana use. One could argue that differing considerations there might have led to the recognition of an implied right of action for wrongful discharge under CREAMMA, especially should such a case of that kind be brought in a state rather than federal court where such issues are more liberally construed in favor of employees. 

Thus, despite this recent federal appellate decision, employers should always proceed with caution anytime there is any thought about disciplining an individual for marijuana use. Discrimination due to cannabis use is clearly illegal under CREAMMA, and employers should never act in any legally prescribed way that could impair employee rights in the workplace.

Federal Judge Rules Recreational Marijuana User Has No Legal Remedy Under NJ CREAMMA Law for Failing to Be Hired

In a case involving a critical issue of first impression under New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, (“CREAMMA”), a federal judge in New Jersey has ruled that remarkably the CREAMMA law does not allow an employee whose job offer was revoked due solely to his use of recreational marijuana to sue for wrongful failure to hire, despite the fact that the law specifically precludes employers from taking adverse action against employees or job applicants solely based upon that very use.        

In the Zanetich case, ______ F. Supp. 4th ____ (D.N.J. 2023), the Plaintiff filed a job application for employment with the Defendant employer.  An offer of employment was conditionally extended by Defendant, subject to a negative drug test. Plaintiff’s drug test came back positive for recreational marijuana use. Defendant thereafter proceeded to revoke the previous extended job offer, based solely on the drug test showing positive use of marijuana only.

Thereafter, the Plaintiff filed a class action suit on his own behalf and other similarly situated employees who had wrongfully had a past job offer revoked exclusively because of a positive drug test result for legalized marijuana use in New Jersey. The Defendant eventually moved to dismiss the lawsuit, claiming that there was nothing expressly included in the CREAMMA law that allowed for the bringing of any sort of employment discrimination lawsuit asserting a violation of CREAMMA. Remarkably, despite its prohibition on taking any sort of adverse employment action against an employee or applicant for employment based solely upon that person’s use of legalized marijuana, there is nothing in the law that expressly gives affected employees the right to bring such a lawsuit. Rather, the CREAMMA law created an agency, the Cannabis Regulatory Commission, and gave it the right to regulate, investigate, and prosecute violations of CREAMMA. This provision of the law ultimately led the court to conclude that the legislature intended for that agency to be the exclusive designated forum to address these kinds of cannabis employment discrimination claims.

The Court began its analysis of the issue by noting that, as all acknowledged, the CREAMMA law had no explicit right of private action provision that would allow the lawsuit to continue. It next considered whether as Plaintiff argued, there was a private right of action that could be implied by the structure of the law. The court ultimately rejected this contention, finding instead that the legislation vested exclusive enforcement authority over the law in the Cannabis Regulatory Commission, which the court admitted had not yet acted in any way to give employees in Plaintiff’s situation access to any present avenue for available relief when employers ignore CREAMMA’s prohibitions on employment discrimination against marijuana users.  In ultimately dismissing the case, the Court urged the legislature to either amend the law if it wished to grant a private right of action to affected employees to enforce the law, or the Commission needed to pass regulations covering these types of situations, so a remedy is made available to such employees in the future.     

The foregoing decision no doubt has surprised many seasoned labor and employment practitioners. Given how liberal New Jersey courts interpret these kinds of laws, most expected that a private right of action would have long been implied by some state court decision. Interestingly, this case began in state court, but the Defendant here was able to remove it to federal court. So, what should employers do in light of this case? Should this decision now stand as an open invitation for employers to ignore the prohibitions of CREAMMA and start taking adverse employment actions against employees who use marijuana outside the workplace? I would strongly respond no, because federal decisions about state law are not binding on state court judges. We can also reasonably expect that somewhere down the line in the not too distant future that a state court judge in New Jersey will reach a different conclusion than what was decided here in Zanetich and likely find a possible implied cause of action. No doubt, the legal standard used by the Zanetich court here could easily have been applied to reach a very different conclusion.

Therefore, employers must continue to think twice and proceed carefully before ever moving on the urge to either fire, discipline, or not hire employees who test positive for marijuana use. Accordingly, whether or not there is presently a current mechanism for enforcement of CREAMMA’s anti-discrimination prohibitions, discrimination due to cannabis use is clearly still illegal under CREAMMA and employers should never act in illegally prescribed ways in the workplace.

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New Jersey Bans Hair Discrimination

On December 19, 2019, New Jersey Governor Phil Murphy signed into law a bill which now makes it illegal to discriminate based upon hairstyles associated with race. The law, known as the “Create a Respectful and Open Workplace for Natural Hair Act” or “CROWN” for short, amends the New Jersey Law Against Discrimination (“LAD”)’s prohibitions to now bar discrimination based upon “traits historically associated with race,” including hair texture and “protective hairstyles,” defined under the law as styles such as dreadlocks, braids and twists. According to the Senate Judiciary Statement reporting favorably on the bill: “The change is intended to remove any confusion or ambiguity over the scope of the LAD and its applicability to race discrimination predicated on such traits.” With its passage, New Jersey becomes the third state in the country (along with California and New York) to ban such discrimination. The law was passed on the one year anniversary of a high school wrestling incident where a New Jersey African American student could not wrestle in a match unless his dreadlocks were either covered or cut.

In light of this new law, which takes effect immediately, employers should review their workplace personal appearance policies to ensure that their policies withstand legal scrutiny under these new requirements. One critical question left unanswered by the new act is whether restrictions can continue to be placed upon hair style or hair length for safety reasons, say when an employee works around heavy machinery or around food in the food industry. It therefore remains to be seen whether such previously acceptable limitations on hairstyles and length will still be permitted under the new law.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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One Strike and You’re Out-Single Racial Slur Can Create Hostile Work Environment

Everyone knows, or hopefully should know, that Title VII of the Civil Rights Act of 1964 protects employees from encountering a hostile work environment due to their race. What many may not know is that there is another federal law that also prohibits racial discrimination in the form of hostile work environment. That statute, §1981 of the Civil Rights Act of 1866, was the subject of a significant recent decision from the Third Circuit Court of Appeals that addressed what legal elements must be established in order to prove a hostile work environment claim under § 1981. Employers are wise to heed the edicts of this decision because it has expanded the potential situations where a racially hostile work environment can be established under this law.

In Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017), two African-American male employees worked as general laborers for the defendant company. They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n….r-rigged” the fence. This incident was confirmed by other coworkers and reported thereafter by the employees to a superior. Two weeks later, the two African-American employees were fired without explanation, but were subsequently rehired, only to be fired again, this time because of a “lack of work.”

The African-American employees subsequently filed suit alleging harassment, discrimination, and retaliation in violation of § 1981. The trial court dismissed the employees’ harassment claim because it determined that the facts as pled in the plaintiffs’ complaint did not support a finding that the harassment was “pervasive and regular.” This ruling was not at all surprising because ordinarily in order to prove a hostile work environment under current law, more than a single incident is required to give rise to a potential legal claim. That is how most courts, including in this judicial circuit, have read the requirement of “severe and pervasive.”

An appeal was subsequently taken to the Third Circuit Court of Appeals. The Court determined that it was error for the complaint to have been dismissed. Clarifying its past decisions in this area, the Court held that, in some circumstances, a single incident can be severe enough to contaminate a workplace environment in violation of the requirements of § 1981. In order for a single incident to serve as grounds for a claim of hostile work environment under this law, the Third Circuit explained that the incident must be so “extreme to amount to a change in the terms and conditions of employment.” Thus, not every incident will be enough to meet this new standard, though the decision unfortunately does not provide much clarity at all as to what such circumstances must be to ultimately meet this standard.

The instant decision certainly creates a precarious situation for employers. While ultimate success in each case of this kind will often depend heavily upon the facts giving rise to the case, this decision certainly provides a strong incentive for employers to continue to implement strong anti-harassment policies and training so that everyone understands that zero tolerance of any racially intolerant or similar inappropriate comments is the rule in your workplace.  Otherwise, you could learn the hard way as the employer in this case did that there are certain pernicious comments that should never be uttered in any workplace.0

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