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.
Retaliation lawsuit requirement of reasonable and good faith internal complaints
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.
Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for his…
Bruce L. Atkins is regarded as one of New Jersey’s premier practitioners of employment and civil litigation. He has been selected to the New Jersey Super Lawyers prestigious list every year since 2005. This honor, bestowed upon a recipient by the votes of his peers, is a powerful nod to the skill Mr. Atkins brings…
Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, P.C. in March of 2015. He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters. He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict in…
Diane Englander Peyser joined Deutsch Atkins & Kleinfeldt, P.C. in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins & Kleinfeldt, P.C., Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination, disability…
Debra M. McGarvey joined Deutsch Atkins & Kleinfeldt, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA), the…
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