NO PLAINTIFF LEFT BEHIND: LIABILITY FOR WORKPLACE
DISCRIMINATION AND RETALIATION IN NEW JERSEY
By Richard A. West, Jr., Esq.
I. Introduction
New Jersey has been at the forefront of establishing and protecting workplace rights for employees. Through actions such as enforcing promises of job security contained within employee handbooks, ensuring leave time for employees with family members suffering from serious health conditions, and, most recently, increasing the ability of employees to bring civil actions against their employers for injuries suffered in industrial accidents, New Jersey has asserted itself as a national leader in recognizing and responding to the changing realities of the modern workplace.
Consistent with its desire to protect employee rights, New Jersey has also enacted broadly written anti-discrimination and anti-retaliation statutes, namely, the Law Against Discrimination ("LAD") and the Conscientious Employee Protection Act ("CEPA"). State courts have interpreted these statutes in a manner designed to afford the greatest coverage possible for plaintiff-employees, and for the declared purpose of protecting not only employees but the public interest as well. As a result, New Jersey has expanded the definition of workplace civil rights into uncertain territory, converting a greater number of employer decisions and workplace disputes into potential lawsuits and, in turn, expanding employer liabilities well beyond comparable liabilities presently existing under federal law or the laws of other states. Not surprisingly, an explosion of litigation based upon these statutes has ensued, prompting a former New Jersey Attorney General to observe that even cases of marginal relevance are now being presented by plaintiffs' counsel as having substantial settlement value.
This article reviews New Jersey law to the extent that it has created statutory liabilities for employers regarding discrimination and retaliation claims beyond what presently exists under federal law and the laws of other states, focusing upon four particular areas. Part II focuses upon the broad categories of individuals who can qualify as handicap or age discrimination plaintiffs under the LAD. Part III studies the expansive range of conduct that can qualify an employee as a protected whistleblower under CEPA. Part IV analyzes the availability of large damage awards for plaintiffs and enhanced fee awards for their counsel. Part V reviews the disfavored status of certain affirmative defenses in LAD and CEPA cases. The article concludes by briefly commenting upon the impact of the additional claims and remedies available under New Jersey law.
[The full text of the article is available at Seton Hall Legislative Journal, Vol. 28 No. 1 (2003), or on Westlaw at 28 SHLJ 127.]
