If a supervisor makes egregious comments about a person’s co-workers outside of the hearing range of such co-workers, it can be very disturbing nevertheless to the person hearing the offensive language who works in such an atmosphere. When the offensive speech targets employees who are in a protected class such as women or racial minorities, it can be further disturbing to hear these comments even when he/she may not be in the group being maligned; i.e., a male worker hearing explicit egregious repugnant sexual comments or jokes about his female co-workers, or a white worker hearing offensive derogatory racist comments, jokes or epithets about employees of color.
If a New Jersey employee hearing such discriminatory comments reasonably believes such comments to be violating discrimination law and reports it to a supervisor, and the employer subsequently retaliates against the complaining employee, the employee may have a claim for illegal retaliation in certain instances under the Law Against Discrimination, N.J.S.A. 10:5-12(d) (LAD).The reporting employee who reasonably believes the offensive speech is violating the law, is engaged in protected activity for which the employer may not take retaliatory action against him/her.
An Identifiable Victim of Actual Discrimination Is Not Required.
When a NJ employee reports egregious speech which he/she reasonably believes is violating the law, even when there is no proof that any person in the targeted protected class actually heard the discriminatory language, so there are no identifiable employee victims of this conduct, a retaliation claim for the reporting may still be valid. An identifiable victim of actual discrimination is not required. As long as the employee has a reasonable good faith belief when making the complaint that the conduct complained of violates the LAD, it is sufficient for purposes of pursuing a cause of retaliation claim under the LAD. The courts do not require that the employee accurately understand the legal complexities of the statute.
There is no requirement that a plaintiff prove the existence of an identifiable victim of actual sexual discrimination. As long as an employee alleging employer retaliation in response to voicing complaints, he/she reasonably believes in good faith that the complained of speech or conduct violates the LAD, a cause of action may be pursued.
Note: At least one court has stated that if an employee learns he is about to be fired, and in response quickly devises a complaint of improper conduct prior to the termination in a failed attempt to avoid being fired, it does not convert it to a valid retaliation claim.
Prima Facie Case of Retaliation under the New Jersey Law Against Discrimination
The Law Against Discrimination, N.J.S.A. 10:5-12(d) prohibits a “person” from retaliating against any person who opposes “any practices or acts forbidden under this Act.”
In order to assert a prima facie case of illegal retaliation by an employer under the LAD, an employee must show that:
(1) he or she was “engaged in a protected activity known to the defendant;
(2) “[he or she was] thereafter subjected to an adverse employment action the defendant”; and
(3) “there was a causal link between the two.”
Do Not Sit on Your Rights, or You May Lose the Right to Prevail in a Lawsuit
In many instances of illegal retaliation, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office for a free consultation to discuss your options in the safest way for you.
What You Can Do
I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who suffered illegal retaliation and successful in recovering multiple six figure settlement moneys for them.
I am experienced in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of illegal retaliation, and age, race, sex, disability, sexual orientation, and other discrimination. If you have been fired, or think you will be fired or being pushed out of your job or retaliated against, you should contact this office immediately for a free consultation.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.