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.