Many people suffer discrimination in the workplace but are hesitant to complain because they are concerned that their employer or supervisor may engage in some form of retaliation. The New Jersey Law Against Discrimination (LAD) specifically prohibits an employer from exacting retribution against an employee for reporting discrimination based on traits like gender, race, sex or other covered characteristics.
An employee subject to retaliation by an employer for filing an internal discrimination complaint must establish four elements to make out a prima facie retaliation claim under LAD:
1) The employee is a member of a protected class, which includes color, national origin, race, marital status, age ancestry, creed, military service, atypical heredity/blood /cellular trait, sexual orientation or disability
2) The employee was subject to an adverse employment action or decision
3) The adverse employment decision or action was based on membership in the protected class.
Another element was subsequently added by New Jersey courts:
4) The internal discrimination complaint must be made reasonably and in good faith according to Carmona v. Resorts Int’l Hotel & Casino.
The Carmona decision justified the additional requirement as necessary to prevent filing internal complaints as a sword rather than a shield. The court reasoned that a plaintiff asserting an LAD retaliation claim should not be able to base such a claim on a meritless or preemptory internal complaint regarding unlawful discrimination. The analysis of the court also concluded that this fourth requirement places the motivation of the employee for asserting the internal discrimination claim directly at issue. Under the Carmona decision, an employer can defend against a retaliation claim if the employer can show it would have taken the adverse action or made the adverse decision regardless of the internal complaint.