What must an employee prove to prevail in a retaliation lawsuit after making an internal complaint of discrimination to his employer? New Jersey law had been well settled that in order to establish a prima facie case of retaliation under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12 (d)(LAD), an employee was required to show:
(1) He was engaged in a protected activity known to the Employer;
(2) He was thereafter subjected to an adverse employment decision by the Employer;
(3) There was a causal link between his protected activity and the subsequent adverse employment action.
Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995); Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, 548-49 (App.Div. 1995).
In 2007, the New Jersey Supreme Court added the requirement that a retaliation plaintiff demonstrate that his underlying complaint of discrimination was brought “reasonably and in good faith.” Carmona v. Resorts Int’l Hotel & Casino, 189 N.J. 354, 372-73 (2007). In requiring this showing, the Court stated it was following parallel federal court precedents, under which a plaintiff must show that “he had a reasonable, good-faith belief that discrimination occurred to prevail on a retaliation claim[,]“ Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 187 (2005) (Thomas, J., dissenting). This tenet was said to be universally observed by every United States Court of Appeals that has considered the question. Id. at 187 n.1 (citing cases).
The Carmona Court also stated that its reasoning conformed to the public policy underlying the New Jersey Law Against Discrimination (“LAD”).
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.
Id. at 372-73.
As a result, juries deciding LAD retaliation cases will now be asked whether the employee’s initial internal discrimination complaint was made “reasonably and in good faith”. Only upon an affirmative answer, will the employee be permitted to prove the above three prima facie elements.
This approach places the employee’s motivation in bringing an internal complaint of discrimination directly at issue. It conflicts with some federal court decisions addressing the “participation clause” protections from retaliation under Title VII of the Civil Rights Act. “Participation” refers to the federal or state mechanisms established to combat discrimination such as filing a charge with the EEOC. See e.g. Slagle v. County of Clarion, 435 F.3d 262, 268 (3d Cir. 2006). The Carmona Court declined to differentiate federal case law addressing the dichotomy between opposition clause and participation clause protections even though the “text of the LAD also lists both the “opposition” and “participation” as statutorily protected activity.’” See Carmona 189 N.J. at 372 n.5.
A similar result could have been accomplished without unduly focusing on the possibility of a complaining employee’s dubious motivation. Rather, internal complaints which the employee injected in bad faith or in anticipation of imminent discipline, could be screened at the final stage of prima facie proof. There, the employee bears the burden of demonstrating that there was a causal link between his protected activity and the subsequent adverse employment action. If the employer shows that it was going to take adverse action before and/or regardless of an internal discrimination complaint, an employee would not likely meet this burden.
The Court’s subsequent retaliation ruling in Tartaglia v. UBS Paine Webber, Inc., 197 N.J. 87, 127 (2008) affirmed a required retrial of an employee’s “no cause” verdict. This was due to the trial court’s error in instructing the jury to disregard a second claimed “protected” internal complaint of gender discrimination. The Court noted that upon retrial, the trial court might conclude that there remains an issue of fact about whether the “wet my pants” remark and supervisor Janick’s responsive laughter supported a reasonable, good faith belief that they were directed at plaintiff “because of her sex,” and therefore constituted protected activity under the LAD. An appropriate charge to the jury would permit it to decide this mixed factual-legal issue of whether “protected” activity had occurred.
Although the Carmona Court seems to have hastily abandoned the federal dichotomy between opposition and participation clause protections despite following “parallel federal court precedents,” this ruling may be defensible since Mr. Carmona’s discrimination complaints were limited to Resorts’ own internal processes. In retaliation case trials, plaintiffs should actively seek summary judgment or to strike the defense of bringing an unreasonable, bad faith, internal complaint unless substantial evidence supports such an assertion.
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 The New Jersey Supreme Court changed the intended meaning of this quote from Jackson by omitting the words: “no Court of Appeals requires a complainant to show more than that . . .”