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Employee’s Retaliation Claim Can Survive Reversal of Discrimination Award

Employee’s Retaliation Claim Can Survive Reversal of Discrimination Award

Employment discrimination claims can be difficult to prove. Often there is scant direct evidence of an employer’s intent to treat an employee differently or that an action resulted in a negative consequence for the employee. An employer often will assert that there were legitimate business reasons for the actions taken and that they were reasonable under the circumstances. But even if proof of discrimination falls short, an employee may still prevail on a separate claim that they suffered retaliation for standing up for their rights.

When a retaliation claim is linked to the discrimination case, the proof the plaintiff needs to establish in the two cases is often intertwined. But in New Jersey, the claims are nonetheless distinct and are not codependent.

A recent decision from the New Jersey Appellate Division, Johnson v. State, illustrates how a retaliation claim can survive dismissal of a discrimination claim or reversal of a judgment. Nathan Johnson, a black attorney employed by the NJ Department of Banking and Insurance (DOBI) complained of multiple instances of racial discrimination, hostile work environment and retaliation, all of which are actionable under the state Law Against Discrimination (LAD). Over a period of several years, there were multiple adverse actions taken against Johnson, some of which followed his filing of a discrimination complaint with the EEOC.

Ultimately, the trial court found in favor of Johnson for almost $1 million in damages for discrimination and for acts of retaliation by DOBI that began after the discrimination claim was filed. DOBI appealed, claiming the discrimination case was not proved and therefore the award for retaliation could not stand without a new trial. The appellate court agreed that the discrimination claims should have been dismissed but reasoned that DOBI’s actions after Johnson filed his initial complaint — including his reassignment to an inferior position — were sufficient to support the claim of retaliation. The verdict was upheld.

The ruling is significant because many employment cases allege discrimination and retaliation as independent grounds for recovery under LAD. While the facts and evidence often overlap, each claim has its own standard of proof. To establish a case of retaliation, a plaintiff must demonstrate that he suffered an adverse employment action as a consequence of engaging in a protected activity. In Johnson’s case, the retaliation claim was based on the defendant’s actions in response to plaintiff simply filing a discrimination claim, which is a protected activity.

Employers cannot penalize employees for exercising their rights. If you feel your rights have been violated or you have a question regarding where you stand, Deutsch Atkins & Kleinfeldt is here to help. With over 30 years of experience in New Jersey employment matters, we can assist you in resolving conflicts arising from your employment. To schedule a consultation, contact us online or call us at 551-245-8894 to schedule a consultation at our Hackensack office.

Neil  H.  Deutsch Attorney Photo
Neil H. Deutsch
Retired

About 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…

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Bruce L. Atkins
Senior Partner

About 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…

Adam  J.  Kleinfeldt Attorney Photo
Adam J. Kleinfeldt
Partner

About 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…

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Diane Englander Peyser
Attorney

About 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,…

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Debra M. McGarvey
Attorney

About 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),…

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