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Law Against Discrimination

The New Jersey Law Against Discrimination (hereinafter “NJLAD”), N.J.S.A. § 10:5-1 to – 49  (hereinafter “NJLAD”) prohibits unlawful discrimination.  The Legislature adopted the NJLAD in 1945 to eradicate the harm associated with discrimination.  N.J.S.A. § 10:5-3;  Fuchilla v. Layman, 109 N.J. 319, 334 (1993) .   According to the Legislature, “Discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.”  Id.  NJLAD prohibits discrimination “because of national origin [and] ancestry.”   N.J.S.A. § 10:5-3.  The NJLAD has prohibited national origin and ancestry discrimination since its enactment in 1945.  Id.   National origin is defined as “the country where a person was born, or, more broadly, the country from which his or her ancestors came.”   Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 88, 94 S. Ct. 334, 336, 38 L. Ed. 2d 287 (1973).  Pursuant to N.J.S.A. § 10:5-12:



It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:


a. For an employer, because of the . . . national origin, ancestry,  . . .  to discriminate against such individual in compensation or in terms, conditions or privileges of employment.



. . . .


d. For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.




“Because of its remedial purpose, the LAD should be construed liberally to achieve its aims.” Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005) (citing Franek v. Tomahawk Lake Resort, 333 N.J. Super. 206, 217 (App. Div. 2000)).  “What makes an employer’s personnel action unlawful is the employer’s intent.” Id. (citing Marzano v. Computer Sci. Corp., 91 F.3d 497, 507 (3d Cir. 1996)). “To address the difficulty of proving discriminatory intent, New Jersey has adopted the procedural burden-shifting methodology articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L. Ed.2d 668, 677 (1973).”  Zive v. Stanley Roberts, Inc., supra, 182 N.J.  at 447; See also Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 83 (1978); Coefield v. GPU, 125 Fed. Appx. 445, 448-449 (3d Cir., 2005); Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 490 (1982).   Under McDonnell-Douglas, Plaintiff must first establish a prima facie case of discrimination.  McDonnell-Douglas Corp. v. Green, supra, 411 U.S.  at 802, 93 S.Ct. at 1824, 36 L. Ed.2d at 677.  The prongs of the prima facie case will “vary depending on the particular employment discrimination claim being made.” Victor v. State, 203 N.J. 383, 409–10 (2010). “Establishment of a prima facie case gives rise to a presumption that the employer unlawfully discriminated against the employee.” Bergen Commer. Bank v. Sisler, 157 N.J. 188, 210 (1999). Then, “The employer then must come forward with evidence of a non-discriminatory reason for the adverse action.  Once the employer comes forth with a legitimate, non-discriminatory, reason for its actions, a presumption of discrimination no longer exists. Stewart v. Rutgers, State Univ., 120 F.3d 426, 432 (3d Cir., 1997).  Then, the burden of production shifts back to the plaintiff to show that the employer’s stated reason was not the true reasons and was instead a pretext to mask discrimination.  Greenberg v. Camden County Voc. & Tech. Sch., 310 N.J. Super., 189, 199 (N.J. Super. Ct., 1988); Kelly v. Bally’s Grand, Inc., 285 N.J. Super. 422, 430 (App. Div. 1995).


New Jersey courts recognized a hostile work environment cause of action under NJLAD.  See Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993); Taylor v. Metzger, 152 N.J. 490, 498 (1998).   To prevail on a hostile work environment claim, Plaintiff must prove that h/her employer’s conduct (1) would not have occurred but for the employee’s protected characteristic, and that the conduct was (2) severe or pervasive enough to make a (3) reasonable person having that characteristic believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. See See Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993); Taylor v. Metzger, 152 N.J. 490, 498 (1998).   According to Lehmann v. Toys ‘R’ Us, Inc., supra, 132 N.J.  at 604,  the “but for” element is not satisfied if “the same conduct would have occurred regardless of the plaintiff’s [national origin].”  “For example, if a supervisor is equally crude and vulgar to all employees, regardless of their [national origin], no basis exists for a [national origin] claim.”  Id.  However, when conduct is overtly discriminatory, the “but-for” element will automatically be satisfied.  See Id.; See also Muench v. Township of Haddon, 255 N.J. Super. 288, 605 (App. Div. 1992).

As stated in Lehmann v. Toys ‘R’ Us, Inc., supra, 132 N.J.  at 605,  the second, third and fourth prima facie elements are interdependent.  Id.  Courts will look to the totality of the circumstances to determine whether plaintiff’s allegations are sufficiently serious to be actionable.  Baliko v. International Union of Operating Eng’rs Local 825, 322 N.J. Super. 261, 275 (App. Div.), certif. den., 162 N.J. 199 (1999); Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App.  Div.  1999) ].  According to Vekshteyn v. Movado Group, Inc., A-4412-99T3, slip op. at 12 (App. Div. 2001), certif. den., 172 N.J. 173  (2002), “there is no minimum number of incidents, and no formula for the required duration of the offensive conduct, that makes the situation actionable. “Claims of hostile work environment are highly fact sensitive, and must be decided on a case by case basis.”  Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 19–20 (2002).  Court must consider “‘all the circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003) (quoting Shepherd v. Hunterdon Developmental Ctr., supra, 174 N.J. at19–20).  In Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 25 (2002), the Court asserted that ”[a] supervisor’s coldness, lack of civility, or failure to provide employees with Christmas gifts or party invitations, although inhospitable and boorish, cannot qualify as ‘severe or pervasive’ under the LAD.”  However, in Taylor v. Metzger, supra, 152 N.J. at 498, the Court found that a single incident where the County Sheriff called a black female Sheriff Officer of jungle bunny severe and pervasive enough to be actionable under NJLAD.   Id.  As to the third element, the conduct must offend a reasonable person.  See Lehmann v. Toys ‘R’ Us, Inc., supra, 132 N.J. at 587.   According to Lehmann v. Toys ‘R’ Us, Inc., supra, 132 N.J. at 587, [a] hypersensitive employee might have an idiosyncratic response to conduct that is not, objectively viewed, harassing.”


The NJLAD’s anti-retaliation provision mirrors the anti-retaliation provision contained in Title VII.  42 U.S.C.A. § 2000e–3(a); N.J.S.A. § 10:5-12(d).  The New Jersey Supreme Court has adopted the method of proof required for Title VII cases to determine whether retaliation exists.  Velantzas v. Colgate–Palmolive Co., Inc., 109 N.J. 189, 193  (1988); Jamison v. Rockaway Tp. Bd. of Educ., 242 N.J. Super. 436, 445, 577 (App. Div. 1990).  To prove a claim of retaliation under the NJLAD, an employee must establish that: (1) the employee engaged in protected activity as defined under the Act; (2) the activity was known to the employer; (3) the employee was subjected to an adverse employment decision by the employer and that (4) there existed a causal link between the protected activity and the adverse employment action.  Grazioli v. Genuine Parts Co., 409 F. Supp. 2d 569 (D.N.J. 2005);  Burlington Northern and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (U.S. 2006); Kant v. Seton Hall University, 289 Fed. Appx. 564, 567 n.6, 238 Ed. Law Rep. 96 (3d Cir. 2008); Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629–630 (1995); Jamison v. Rockaway Tp. Bd. of Educ., 242 N.J. Super. 436, 445  (App. Div. 1990); Morales–Evans v. Administrative Office of the Courts of New Jersey, 102 F. Supp. 2d 577 (D.N.J. 2000); Young v. Hobart W. Grp., 385 N.J. Super. 448, 465 (App.Div.2005).

In Carmona v. Resorts Int’l Hotel, Inc., 189 N.J. 354 (2007), the New Jersey Supreme Court held:

In a case in which a plaintiff alleges retaliation under the LAD, N.J.S.A. 10:5-12d, the plaintiff bears the burden of proving that his or her original complaint-the one that allegedly triggered his or her employer’s retaliation-was made reasonably and in good faith. The obverse also holds true: an unreasonable, frivolous, bad-faith, or unfounded complaint cannot satisfy the statutory prerequisite necessary to establish liability for retaliation under the LAD.




In addition, “[T]emporal proximity alone will be insufficient to establish the necessary causal connection when the temporal relationship is not ‘unusually suggestive.’ Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (quoting Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997). In Cardenas v. Massey, 269 F.3d 251, 264  (3d Cir. 2001), the court concluded:

The temporal relationship in this case is, alone, insufficient to establish causation, because the alleged protected activity took place over a substantial period of time and any routine employment action taken during that period would necessarily be related temporally. In such circumstances, there would have to be another basis to permit the inference of a causal relationship.



In addition to the foregoing, in Roa v. Roa, 200 N.J. 555 (2010), the New Jersey Supreme Court stated:


In addressing the question of ‘how harmful an act of retaliatory discrimination must be in order to fall within the provision’s scope,’ the [the U.S. Supreme Court] held that ‘a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’


[Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61, 126 S.Ct. 2405, 2411, 165 L.Ed.2d 345, 355 (2006); Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006) ; Washington v. Ill. Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir.2005))).



To demonstrate pretext, the plaintiff must show that the employer’s reason was both false and “motivated by discriminatory intent.”  Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005).  The plaintiff must:

Submit evidence that either casts sufficient doubt upon the employer’s proffered legitimate reason so that a factfinder could reasonably conclude it was fabricated, or that allows the factfinder to infer that discrimination was more likely than not the motivating or determinative cause of the termination decision.


[Viscik v. Fowler Equip. Co., 173 N.J. 1, 13, 800  (2002)..  (quoting Svarnas v. AT & T Commc’ns, 326 N.J. Super. 59, 82  (App. Div.1 999).]


According to Fuentes, to survive Summary Judgment, at this point,

The plaintiff must point to some evidence, direct or circumstantial, from which a fact-finder could reasonably either (1) disbelieve the employer’s articulated legitimate reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.


[Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir., 1994); See also Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). Svarnas v. AT & T Commc’ns, 326 N.J. Super. 59, 82 (App. Div. 1999)(That is, there must be evidence “that either casts sufficient doubt upon the employer’s proffered legitimate reason so that a fact[-]finder could reasonably conclude it was fabricated, or that allows the fact[-]finder to infer that discrimination was more likely than not the motivating or determinative cause of the termination decision.”).


Moreover, Plaintiff must present rebutting evidence that would allow a fact finder to reasonably infer that “each of the employer’s proffered reason was either a post hoc fabrication or otherwise did not motivate the employment action.”  Kelly, supra, 285 N.J. Super. at 431 (citing Fuentes, supra, 32 F. 3d at 765).  To accomplish this, the plaintiff must demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact-finder could rationally find them “unworthy of credence,” . . . and hence infer “that the employer did not act for [the asserted] non-discriminatory reasons.”  Kelly, supra, 285 N.J. Super. at 431 (citing Fuentes, supra, 32 F. 3d at 765).   In addition to the foregoing, “[a]lthough the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination.”  Bergen Commer. Bank, supra, 157 N.J. at 211.