In this issue: Expanded Federal Anti-Discrimination Protections for LGBTQ+ Community; Updates to NJ's Expungement Law; COVID-19 Scam Tips for Seniors; Upcoming Informational Webinars; and more.

NNJLS Has Gone Virtual!

Equality Has Clocked In

Authored by Balean Reid, a 3L (third year) at Emory University School of Law and

NNJLS's 2020 Deborah T. Poritz Summer Public Interest Legal Fellow

The case arose from three different Title VII claims in which two employees were terminated due to being homosexual and the third employee was fired for transitioning genders during employment. Justice Gorsuch in the majority opinion explained that sexual orientation and transgender status are inescapably related to sex. As such, the identity of being homosexual or transgender cannot be defined without one’s sex. For example, if an individual is attracted to women, this does not indicate any basis for discrimination. However, if the sex of that individual is female (meaning she is a woman attracted to women), this now is a basis for discrimination.

Disagreeing with the majority in the dissenting opinion, Justice Alito warns that the court may be overextending its authority and creating law. Justice Alito argues that the drafters of the Civil Rights Act did not intend sexual orientation and transgender identity to be an interpretation of the term "sex." He goes further to argue that declaring sexual orientation and transgender status as protected under Title VII will lead to a flood of litigation because the term sex will become overly broad. Expanding on this argument Justice Alito advises that a broad reading of the term sex will cause uncertainty regarding restroom “safety” and even uncertainty in gender-based sports.

While Bostock seems to be a huge victory for the LGBTQ+ community, there are concerns about how this case will be interpreted in the future. One major concern the majority raises in Bostock is Title VII protection of homosexual and transgender individuals when it conflicts with religious beliefs. However, in the majority opinion, Justice Gorsuch does not answer whether an employer finding their religious beliefs in conflict with homosexuality justifies discriminatory hiring or employment practices.

On a positive note, the majority emphasized two helpful points for a Legal Services client. First, Title VII claims are evaluated on an individual basis, meaning the test for a Title VII violation is whether the employer treats an individual differently because of their sex, not because of the class of individuals they fall into. Second, an employee’s sexual orientation or transgender identity does not have to be the sole or primary reason the employee was terminated. Once a Title VII violation has been found, the employee will be entitled to compensatory and punitive monetary damages.

As in this case, Supreme Court decisions are often understood on a macro-level, but what does this mean for a Legal Services client? By leaving unanswered the question of an employer’s religious beliefs conflicting with homosexuality, the reality is there may be little recourse for a Legal Services client. For example, a housing case in which Caitlin, a woman who identifies as lesbian, seeks legal help because she has been evicted. Caitlin explains that she could not pay rent due to losing her job at a large, nationwide arts and crafts store. The Legal Services staff member discovers that Caitlin was terminated recently after bringing her girlfriend to the store. This could be a Title VII case if the client believed her identifying as lesbian was a reason for her termination. While this scenario would be ideal for how Legal Services could advocate for this client, a favorable outcome would not be realistic. How successful will this claim be? In this fact pattern, the arts and crafts store is a religiously oriented employer and their employment practices may not coincide with permitting homosexuality. Would a company like the one in this fact pattern be discriminating under Bostock by firing an employee who identifies as gay or lesbian? Justice Gorsuch leaves this question unanswered.

Additionally, employment discrimination claims are a small percentage of the cases Legal Services accept. Knowing that there is federal standing to bring a case and having the resources to do so are two entirely separate things. Bostock is a victory for LGBTQ+ rights nationally. However, there will be little change for a Legal Services client because this is a complex process that is difficult to prove and time-consuming. There are several forms and legal guidelines to comply with and that a client experiencing poverty might not be able to complete without the help of an attorney. The one unilateral benefit is that employers may think twice before discriminating based on sex, including sexual orientation and transgender status.

Sources

https://www.eeoc.gov/youth/what-employment-discrimination

https://www.eeoc.gov/remedies-employment-discrimination

https://www.lgbtmap.org/equality-maps/employment_non_discrimination_laws

https://nj.gov/labor/wagehour/content/employer_faqs.html

Greater Relief Provided by Changes to New Jersey's Expungement Law

Authored by Nicole Parelli, Esq., NNJLS Consumer Law Unit Staff Attorney

On June 15, 2020, changes to the expungement law went into effect that will allow more individuals to expunge their criminal record.

Under a new “clean slate” provision, individuals who were previously disqualified from expungement because they had too many convictions on their record may now be able to find relief. Up until now, if a person had more than one indictable offense conviction or a combination of one or more indictable offense convictions and more than three disorderly persons convictions, they were ineligible for expungement, unless they met very specific criteria. As of 6/15/2020, a person can have their entire New Jersey criminal record, regardless of the number of their convictions, expunged so long as it has been ten years from the date of their most recent conviction, payment of any court-ordered financial assessment, satisfactory completion of probation or parole, or release from incarceration, whichever is later. However, those with a conviction for a crime that is not allowed to be expunged according to N.J.S.A. 2C:52-2(b) or (c) are not eligible for this relief.

If an individual has not yet met the ten-year waiting period requirement of a “clean slate” expungement, they might still be eligible for expungement. A person can get their most recent indictable offense conviction expunged regardless of the number of indictable offense convictions they have, so long as they do not have more than three disorderly persons convictions and they have waited five years from the completion of their sentence. In addition, they only need to wait four years, instead of five, if they can show the court compelling circumstances exist to grant their expungement early.

If a person does not have an indictable offense conviction on their record, they can have up to five disorderly persons convictions on their record and still be eligible for expungement. This is an increase from the previous limitation of four disorderly persons convictions. The waiting period to expunge disorderly persons convictions remains the same: five years from the most recent completion of sentence. However, an individual can apply after only three years, if they can show the court compelling circumstances exist to grant their expungement early.

The fine-payment exception remains the same for the expungement of both indictable offense convictions and disorderly persons convictions. That is, the waiting period will start from the latest completion of sentence, with the exception of payment of fine, if the individual can show they made steady payments on a payment plan or compelling circumstances existed that affected their ability to pay the fine. Significantly, an individual no longer needs to have completed paying their fines and fees to the municipal court in order to apply for an expungement of that conviction. This relief was already available to those who owed court-ordered fines and fees following an indictable offense conviction. The court shall enter a civil judgment for the unpaid portion of the court-ordered financial assessment in the name of the Treasurer and transfer collections and disbursement responsibility to the Treasurer for the outstanding amount.

The legislature has also added specific provisions to the expungement law with regard to marijuana-related convictions. For purposes of determining eligibility, a conviction for the following will not be considered a conviction of a crime within New Jersey or any other State, but will instead be considered a disorderly persons offense:

• Unlawful distribution or possessing with intent to distribute marijuana or hashish in violation of N.J.S.A. 2C:35-5(b)(11), or (12);
• A violation of -5(b)(11) or (12) with a violation of N.J.S.A. 2C:35-7 or -7.1 for distributing, possessing, or intent to distribute within 1,000 feet of any school, or within 500 feet of a public housing facility, public park, or public building;
• Obtaining or possessing marijuana or hashish in violation of N.J.S.A. 2C:35-10(a)(3)

Additionally, the following will not be considered a conviction within New Jersey or any other State:

• A conviction for obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of N.J.S.A. 2C:35-10(a)(4), (b), or (c); and a violation of -10(a)(4), (b), or (c) with intent to use drug paraphernalia in violation of N.J.S.A. 2C:36-2.

For example, if a person had two indictable offense convictions for marijuana-related offenses, they now have two disorderly persons convictions. While previously they would have to wait ten years under the “clean slate” provision to get both convictions expunged, they can now expunge both under the part of the law that provides expungement of up to five disorderly persons convictions. As another example, if a person had an indictable offense conviction for Theft and an indictable offense conviction for a marijuana-related offense, for the purposes of expungement they now only have one indictable offense conviction and one disorderly persons conviction. They can apply after five years under the indictable offense section of the law instead of the clean slate section.

NNJLS provides free civil legal help to persons experiencing poverty residing in Bergen, Hudson, and Passaic Counties with the expungement of New Jersey adult and juvenile criminal records. NNJLS can be reached at (201) 792-6363 or NNJLS@lsnj.org. 

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