Employment Litigation Issues

LAD Retaliation Claimants Must Prove Good Faith: Key Decision makes it more difficult to prove LAD Claims in New Jersey and easier for employers to defend.

In Carmona v. Resorts International Hotel, Inc., 2007 WL 517104(February 21, 2007), Plaintiff Carmona alleged that, after he complained about claimed unfair treatment, he was retaliated against in violation of the Law Against Discrimination (LAD) and brought action against employer. Carmona was fired on November 9, 2001, just three days after he filed a complaint with the hotel’s EEO office, alleging he had been treated differently with regard to medical leave because he is Hispanic. Defendant Resorts asserted the termination was for theft and that an investigation into whether plaintiff was improperly upgrading rooms for hotel guests in exchange for money began on November 5, 2001, the day before plaintiff went to the EEO.

This appeal addressed two separate issues: whether the employee's complaint that allegedly triggers a retaliation claim must be made in good faith and on a reasonable basis, and whether an investigative report prepared by an employer, which the employer claims provided an independent basis for the employee's discharge, should have been admitted into evidence.

The New Jersey Supreme Court noted that the plain language of the LAD retaliation provision does not include the requirement that a plaintiff also prove, in addition to the standard elements of a LAD cause of action, that he or she had a good-faith, reasonable belief that he or she was engaged in protected activity. However, the Court stated that “a requirement that a LAD-retaliation plaintiff demonstrate that his underlying complaint was reasonable and in good faith is entirely consonant with the purpose of the LAD.” Therefore, the New Jersey Supreme Court held that:

[I]in a case in which a plaintiff alleges retaliation under the LAD, N.J.S.A. 10:5-12d, the plaintiff bears the burden of proving that his or her original complaint-the one that allegedly triggered his or her employer's retaliation-was made reasonably and in good faith. The obverse also holds true: an unreasonable, frivolous, bad-faith, or unfounded complaint cannot satisfy the statutory prerequisite necessary to establish liability for retaliation under the LAD.

The New Jersey Supreme Court further held that:

when an employer defends against a claim that an employee's discharge was the product of retaliation, an investigative report prepared by the employer that purports to demonstrate a non-retaliatory reason for the employee's termination is a non-hearsay statement. Finally, we hold that the admissibility of an investigative report in these circumstances is subject not only to all other relevant evidentiary limitations, but also to proof that a decision maker relied on that report in deciding to discharge the employee from employment.

School Law Issues

School District May Be Held Liable Under the New Jersey Law Against Discrimination When Students Harass Another Student Because Of His Perceived Sexual Orientation.

In L.W. v. Toms River Regional Schools Bd. of Educ., 2007 WL 517093, (N.J. Feb. 21, 2007), the Supreme Court was called upon to determine whether a school district may be held liable under the New Jersey Law Against Discrimination (LAD or Act), N.J.S.A. 10:5-1 to -49, when students harass another student because of his perceived sexual orientation and, if so, what standard of liability governs such a cause of action.

In the fourth grade, classmates began taunting plaintiff L.W. with homosexual epithets. The harassment increased in regularity and severity as L.W. advanced through school. In middle school, the bullying occurred daily and escalated to physical aggression and molestation. Within days of entering high school, the abuse culminated with a pair of physical attacks. Ultimately, L.W.'s unease prompted him to withdraw from his local high school and enroll elsewhere, at the expense of his school district.

Thereafter, on her son's behalf, L.W.'s mother filed a complaint under the LAD, alleging that the Toms River Regional Schools Board of Education (District) failed to take corrective action in response to the harassment L.W. endured because of his perceived sexual orientation. The Director of the Division on Civil Rights (Director) held that the District was liable for the student-on-student harassment that L.W. repeatedly endured. The Appellate Division affirmed the Director's decision.

The Supreme Court analyzed the statutory language of the LAD: Pursuant to the LAD, it is unlawful “[f]or any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof” on the basis of that person's “affectional or sexual orientation.” N.J.S.A. 10:5-12(f). “Affectional or sexual orientation” is defined by the Act as “male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation.” N.J.S.A. 10:5-5(hh). Further, “place of public accommodation” expressly includes “any... primary and secondary school... high school... or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey.” N.J.S.A. 10:5-5(l)

The Court held that:

Because of the Act's plain language, its broad remedial goal, and the prevalent nature of peer sexual harassment, we conclude that the LAD permits a cause of action against a school district for student-on-student harassment based on an individual's perceived sexual orientation if the school district's failure to reasonably address that harassment has the effect of denying to that student any of a school's “accommodations, advantages, facilities or privileges.” See N.J.S.A. 10:5-12(f).

The Court clarified that its holding does not suggest that isolated schoolyard insults or classroom taunts are actionable:

Rather, in the educational context, to state a claim under the LAD, an aggrieved student must allege discriminatory conduct that would not have occurred “but for” the student’s protected characteristic, that a reasonable student of the same age, maturity level, and protected characteristic would consider sufficiently severe or pervasive enough to create an intimidating, hostile, or offensive school environment, and that the school district failed to reasonably address such conduct.

The Court stated that “[i]n the school setting, the Lehmann standard requires that a school district may be found liable under the LAD for student-on-student sexual orientation harassment that creates a hostile educational environment when the school district knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment.” However, the Court held that school districts will be shielded from liability, when their preventive and remedial actions are reasonable in light of the totality of the circumstances.