Unlawful Retaliation

What is Unlawful Retaliation?

It is important to understand the concept of unlawful retaliation and the protections afforded to employees under the New Jersey Law Against Discrimination (“LAD”).  Indeed, employers cannot take adverse employment actions (such as terminations or the denial of promotions) against employees because they oppose activities that violate the LAD.  Therefore, the LAD protects employees who oppose unlawful practices in the workplace such as discrimination,     

Under the LAD, it is an unlawful employment practice to retaliate against any person because the individual (1) has opposed any practices or acts outlawed by the LAD or (2) has or intends to file a complaint, testify, or assist in any proceeding under the LAD.  Accordingly, as an employee, if you believe there is unlawful activity in the workplace in violation of the LAD, and you oppose such activity, you are afforded protection under the LAD.  

Retaliation for Confronting Discrimination

Employees who oppose discrimination in the workplace are afforded expansive protection under the New Jersey Law Against Discrimination (“LAD”).  Indeed, employers are prohibited from retaliating against individuals who report discrimination either internally to management or human resources.  Similarly, employers are prohibited from retaliating against individuals who file a complaint alleging discrimination with either federal or state government agencies such as the Equal Employment Opportunity Commission and  the New Jersey Division on Civil Rights.  

Retaliation for Taking Leave

Federal and state law entitle employees to take a leave of absence for their own serious medical reasons, the birth or adoption of a child, or the care of certain family members.   As such, it is important for employees who exercise such rights to understand what constitutes unlawful retaliation for taking a leave of absence. In general, the employee must demonstrate that there is a causal connection between the leave and/or leave request and an adverse employment action suffered by the employee to establish a retaliation claim for taking leave that is cognizable under federal or state law. 

Understanding Adverse Action

Generally speaking, to have a viable discrimination or retaliation claim, an employee must suffer an adverse employment action.   Accordingly, it is important for employees to understand what constitutes an adverse employment action.  In general, an adverse employment action is tangible or material employment action that constitutes a significant change in employment status.  Notable examples include employment termination, demotions, or failure to promote.   Generally speaking, alteration of job responsibilities does not constitute an adverse employment action. 

Identifying Retaliation in Your Workplace

Discrimination and harassment in the workplace is prohibited against any employee or applicant for employment based on race, color, religion, gender, national origin, age, pregnancy, sexual orientation, disability, genetic information, status as a covered veteran, creed, nationality, ancestry, marital status, domestic partnership status, civil union status, gender identity or expression, atypical hereditary cellular or blood trait, liability for service in the Armed Forces of the United States, HIV or AIDS status, or any legally protected classification under federal, state, and/or local laws.  Accordingly, as an employee, if you believe there is unlawful activity in the workplace and you oppose such activity, you are afforded protection under federal and state law. 

What it Means to Be a Whistleblower

The New Jersey Conscientious Employee Protection Act (“CEPA”) “is considered remedial legislation entitled to liberal construction, its public policy to protect whistleblowers from retaliation by employers having been long recognized by the courts” of the State of New Jersey.  See Lippman v. Ethicon, Inc., 222 N.J. 362, 378 (2015).  Indeed, the purpose of CEPA is to “protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.”  Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994). 

To establish a claim under CEPA, the Court “must first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts alleged are true.”  Cosgrove v. Cranford Board of Educ., 356 N.J Super. 518 (App. Div. 2003).  “Sources of public policy include the United States and New Jersey Constitutions; federal and state laws and administrative rules, regulations and decisions; the common law and specific judicial decisions; and in certain cases, professional codes of ethics.”  Id.  “Although the above list is not exclusive, a limiting factor is that the alleged activity must represent a public harm rather than a private harm or a harm only to the aggrieved employee.”  Mehlman  v. Mobil Oil Corp., 153 N.J. 163, 188 (1998). 

Whistleblower Protections

The New Jersey Conscientious Employee Protection Act (“CEPA”) protects employees who report illegal, fraudulent or unethical workplace practices and activities.  CEPA is a far-reaching statute that affords employees protection from unlawful retaliatory activity.  

Among the prohibitions of CEPA is that an employer shall not take any retaliatory action against any employee who discloses or threatens to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer or another employer with whom there is a business relationship, that the employee reasonably believes (1) is in violation of a law, or a rule or regulation issued under the law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care, or (2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity.  See N.J.S.A. 34:19-3a.  

Speak with An Experienced New Jersey Employment Attorney

If you believe that you have been subject to retaliation in the workplace or have been subject to an unlawful retaliatory discharge and are in need of an experienced and well-versed Employment Attorney, please contact Curcio Law