Mark Law Firm Blog

Workplace discrimination can come in many different forms

Posted by Jamison Mark on May 8, 2014 5:41:00 PM
New Jersey Attorneys

Discrimination may be based on several different criteria including a person's race, age, gender, sexual orientation, national origin, religion, disability, or veteran status. Not only is workplace discrimination illegal, but it can have a negative effect on both the victim and those around him. Although many people may witness or be the victim of discrimination, they are often hesitant to report it because they are worried about the consequences. In most instances, however, employees are protected against retaliation when making a good faith report of possible workplace discrimination.

The New Jersey Law Against Discrimination (LAD) makes it unlawful for an employer to retaliate against an employee engaging in a "protected" activity. Under the LAD, protected activities include complaining or protesting against workplace discrimination as well as testifying or assisting in a discrimination action against the employer. There are several common ways in which an employer unlawfully retaliates against an employee who has engaged in protected activity:

  • Intimidating an employee who has engaged in a protected activity.
  • Coercing an employee to not assist or engage in a protected activity.
  • Interfering with an employee's right to engage in a protected activity.
  • Taking negative employment action-such as hiring, firing, demoting, or disciplining-against an employee who has engaged in a protected activity.

If an employee believes that he has become the victim of unlawful retaliation, there are several elements that he must prove in order for his claim to be successful:

  • That the employee engaged in a protected activity;
  • That the employer retaliated against the employee either at the time or after the protected activity took place; and
  • That there is a link between the retaliatory action and the protected activity.

The employee must prove these elements by the preponderance of the evidence, meaning that he must show that there is greater than a 50% chance that each element has been met. Since direct proof of intentional retaliation is often unavailable, the employee may use circumstantial evidence to support his claim.

While the first two elements of a retaliation claim are fairly clear, the third may be more difficult to understand or prove. In order to successfully show a causal link between the employee's protected activity and the retaliation, a jury must first answer the question of whether the employer was motivated to take the negative action because of the employee's participation in a protected activity. Even if the jury finds that the employer had more than one motivation for taking a negative action against the employee, the employee may still be successful on the claim so long as the jury believes the protected activity made a difference in the employer's decision. If, however, the jury thinks that the employer would have made the same decision even if the protected activity did not take place, the employee will not be successful on this element of his claim.

Retaliation claims often involve a series of facts that must be fully evaluated in order to determine whether unlawful retaliation has actually taken place. Consider the hypothetical situation where a worker has clearly been subjected to a hostile work environment and has been discriminated against in the workplace. In order to protect his rights, the discrimination victim hires an attorney and sues his employer. While both sides are investigating the claim, one of the employee's co-workers is questioned by the victim's lawyer. When the company finds out, the assisting co-worker is demoted to a lower position. The original discrimination victim is also demoted and relocated to a different division. At this point, in addition to the original discrimination claim, both employees likely have become victims of unlawful retaliation. The original victim should promptly inform his attorney of what has happened, and his co-worker should seek legal assistance as well.

In general, the NJ LAD provides broad protections against unlawful workplace retaliation. There may be a limited time, however, in which you can bring a claim under the NJ LAD or any other applicable laws. Therefore, if you believe that you have become the victim of unlawful retaliation, it is crucial that you seek the advice of an experienced employment attorney as soon as possible in order to preserve your legal rights.

Source: New Jersey Model Jury Charge 2.22

Topics: Whistleblower Protection