Employment Law II, Law Against Discrimination
COMMON LAW, AND THE LAW AGAINST DISCRIMINATION OR LAD
As noted in Dale v. Boy Scouts of America, 160 N.J. 562, 604 (1999), rev’d and remanded, 530 U.S. 640 (2000), the Legislature did not intend to abrogate all common law causes of action with the enactment of the LAD (Law Against Discrimination). In so finding, the Court quoted from pertinent sections of the LAD statute. Specifically N.J.S.A. 10:5-27 provides, “Nothing herein contained shall bar, exclude or otherwise affect any right or action, civil or criminal, which may exist independently of any right to redress against or specific relief from any unlawful employment practice or unlawful discrimination.” Also, N.J.S.A. 10:5-3, which provides, “The Legislature intends that such damages be available to all persons protected by this act and that this act shall be liberally construed in combination with other protections available under the laws of this State.” (emphasis in original).
RETALIATION and DISCRIMINATION UNDER LAD
It is also unlawful to discriminate against person because they are or have been at any time handicapped, N.J.S.A. 10:5-4.1; N.J.S.A. 10:5-2.1, or to take reprisal against any person because he has opposed any practices forbidden under this act or assisted in any proceeding under the act. N.J.S.A. 10:5-12(d).
An individual is physically handicapped if he suffers from any physical disability, infirmity, malformation, or disfigurement caused by bodily injury, birth defect, or illness. See Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 367-68 n.1 (1988). The term “handicapped” is broadly construed and is not limited to “severe” or immutable” disabilities. Clowes v. Terminix Int’l, Inc., 109 N.J. 575, 590, 593 (1988). The NJLAD does not require that handicaps limit a major life activity to be protected. Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1998). A myocardial infarction resulting from a heart attack has been found to be a handicap. Panettieri v. C.V. Hill Refrigeration, 159 N.J.Super. 472, 481, 489 (App. Div. 1978). Despite this handicap, Plaintiff was well qualified and able to perform his job.
To advance a prima facie case of retaliation under the LAD, an employee must prove that: (1) he engaged in a protected activity; (2) the employer took an adverse employment action after or contemporaneous with the employee’s protected activity; and (3) a causal link exists between the employee’s protected activity and the employer’s adverse action. Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, 548-49 (App. Div. 1995); Abramson v. William Paterson College, 260 F.3d 265, 286 (3rd Cir. 2001).
“Adverse employment action” is a term that must be analyzed in the context of the employee’s work history. In order to constitute an “adverse employment action” under LAD, retaliatory conduct must adversely affect the terms and conditions of the plaintiff’s employment or otherwise limit or segregate the plaintiff in a way that deprives him or her of employment opportunities or affects his or her status as an employee. Marrero v. Camden County Bd. of Soc. Servs., 164 F.Supp.2d 455, 473-74 (D.N.J. 2001).
In determining whether the employer has committed a retaliatory employment action, the court should consider whether there has been a “loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees.” Mancini v. Twp. Of Teaneck, 349 N.J.Super. 527, 564 (App. Div. 2002), aff’d as modified, 179 N.J. 425 (2004). For purposes of establishing a claim of retaliation under LAD, the requisite causal link can be found even if time elapses between the protected activity and the adverse employment decision. Romano, supra, 284 N.J.Super. at 550. The timing of the adverse employment action may support an inference of causation. See Meacham v. Bell Telephone Laboratories, Inc., 1990 WL 299805, p. 9 (D.N.J. 1990)(causal connection may be demonstrated by evidence of circumstances justifying a retaliatory motive, such as protected conduct closely followed by adverse action).
Once an employee establishes a prima facie case of retaliation under LAD, the burden of production, but not the burden of persuasion, then shifts to the employer to articulate a “legitimate, non-retaliatory reason for the adverse action.” Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J.Super. 436, 445 (App. Div. 1990). If the employer provides a business reason for the employment action, then the employee must show that a retaliatory intent motivated the employer’s actions, either directly by showing that a discriminatory reason more likely than not motivated the decision, or indirectly through evidence that the proffered reason is pretext. Romano, supra, 284 N.J.Super. at 551; Marrero, supra, 164 F.Supp.2d at 474-75.
PUNITIVE DAMAGES UNDER LAD
No punitive damages shall be awarded against a public entity. N.J.S.A. 59:9-2. However, the New Jersey Supreme Court has permitted the award of punitive damages against a public entity in the event upper management participates in or is willfully indifferent to violations under the Law Against Discrimination. See Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 132-34 (1999).