The NJ Supreme Court recently established a new and more difficult standard for plaintiffs to prove claims of retaliation or reprisal under the Law Against Discrimination [LAD]. The case is Carmona v. Resorts International Hotel, Inc.
The LAD contains an anti-retaliation provision, which makes it an unlawful employment practice to "take reprisals against any person because . . . that person has filed a complaint, testified or assisted in any proceeding under this act . . .." Notice that the language of the statute does not refer to the reasonableness or viability of the complaint. The plain language of the statute suggests that the mere fact of making a complaint under the LAD can insulate an employee from retaliation by his employer, and it is probably fair to say that this is how the law was understood by most New Jersey employment lawyers.
That changed with the Carmona decision. Drawing upon federal caselaw, and the anti-retaliation provision of CEPA — New Jersey's whistleblower law — the Court held that employees who sue their employers for retaliation now must prove that their underlying complaint of discrimination was reasonable and made in good faith. The Court recognized that it was adding a new requirement to the statute.
We recognize this requirement as an element of plaintiff's required proofs in a LAD-retaliation claim because its absence may well lead to abuse. Common sense tells us that the Legislature could not have intended that the LAD provide a safe harbor to one who files a baseless, meretricious complaint. It also tells us that the LAD cannot protect one who preemptively files a complaint solely in anticipation of an adverse employment action by the employer. The LAD was and is intended as a shield to protect employees from the wrongful acts of their employers, and not as a sword to be wielded by a savvy employee against his employer.
This decision provides additional protection from liability for employers, while making it more difficult for employees to avail themselves of the protection of the LAD. Since discriminatory intent often cannot be discerned conclusively without the benefit of discovery and a trial, it will be interesting to see how plaintiffs' attorneys cope with the enhanced standard of proof that they must meet to prove their clients' claims for retaliation.