Mark Law Firm Blog

Discrimination and workplace retaliation often go hand-in-hand

Posted by Jamison Mark on May 8, 2014 2:11:00 PM
New Jersey Attorneys

The LAD makes it unlawful for an employer to retaliate against an employee, defined as follows:

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.

To state "a prima facie case of retaliation, you must show that 1) you were engaged in a protected activity known to defendant; 2) you were thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two. Once you've established a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a "legitimate, non-retaliatory reason" for the decision. You must then demonstrate that a retaliatory intent (i.e., "pretextual motive"), not the employer's stated reason, pushed the employer's actions against you. This is not an easy burden to show, however it can be accomplished by proving the employer's articulated reason was merely a pretext for discrimination.

What is retaliation under the LAD?

A person engages in a protected activity under the LAD when that person opposes any practice rendered unlawful under the LAD. Such an unlawful employment practice occurs when an employer, or an employee, for any reason, takes reprisal against another employee because the latter has challenged any practices or acts forbidden by the LAD. As a starting point, protected activity, if involving a complaint, must concern discrimination.

What isn't retaliation under the LAD?

Often times, a complaint stemming from "outbursts and name-calling" not sexual in nature do not suffice. In fact, the New Jersey Appellate Court has stated in Miceli v. Lakeland Automotive Corp., A-3207-19 that Abrasive and impolite comments by a manager or co-workers may make for an unpleasant workplace, but if it's directed toward everyone, it's not actionable under the state Law Against Discrimination and "Personality conflicts, albeit severe, do not equate to hostile work environment claims simply because the conflict is between a male and a female employee.". Also, a general complaint of unfair treatment" does not suffice, such as a letter to the employer expressing dissatisfaction over someone else receiving a promotion is not protected activity because it did not allege age discrimination.

The New Jersey Law Against Discrimination protects employees from being victims of discrimination, retaliation, and hostile work environments. Feel free to contact the Mark Law Firm, LLC at (973) 440-2311, (908) 626-1001 or (201) 787-9406, or you can tell us your story by clicking the "contact us" page. We represent clients throughout Essex County, New Jersey including Basking Ridge, Jersey City and Newark.

Topics: Discrimination & Harassment