Last edited Aug. 31, 2018.
Most workers in New Jersey are aware that the state’s Law Against Discrimination (LAD) prohibits employers from discriminating against employees on certain bases, such as race, age, sex, sexual orientation, and gender identity. After all, New Jersey law requires that employers within the state post a notice about the LAD where employees can see it. But what about post-termination employer retaliation? Is that illegal in New Jersey?
The answer to that question is not as well known, but the question does have an answer: Post-termination employer retaliation is illegal under the LAD. The 2010 New Jersey Supreme Court case Roa v. LAFE Foods makes that point abundantly clear. This post explores the legal issues that the Court addressed in Roa and what its opinion means for workers in the state.
Article at a Glance
- Workplace retaliation against employees who report violations of the law is illegal in New Jersey.
- New Jersey workers generally have only two years in which to file a retaliation lawsuit.
- Post-termination retaliation by an employer can violate the New Jersey Law Against Discrimination, even if it is not related to current or future employment.
Roa v. LAFE: What happened?
In Roa, the plaintiffs were a husband and wife, Fernando and Liliana Roa, who both worked for the same company, called LAFE Foods. The Roas were supervised by Fernando’s brother Marino.
In 2003, Marino was allegedly “romantically involved” with two women who worked for the company. After Fernando told Marino’s wife about the workplace romances, Marino “began to harass and threaten [Fernando and Liliana], making ‘life at work miserable.’”
Subsequently, Fernando raised concerns about Marino’s sexual harassment of the two women with the president of LAFE Foods. The president did nothing, and “Marino’s harassment . . . intensified.”
The timeline for what happened next is critical to understanding the New Jersey Supreme Court’s opinion in this case:
- August 24, 2003: Liliana is fired. LAFE Foods claims she was fired for “misconduct” and so can’t receive unemployment benefits. Liliana later appeals that decision and wins.
- October 2, 2003: Liliana undergoes surgery. The surgery costs $6,000, which she and Fernando expect his health insurance to cover.
- October 3, 2003: Fernando is fired.
- October 27, 2003: LAFE Foods cancels Fernando’s health insurance, making the cancellation retroactive to September 30, two days before Liliana’s surgery.
- November 11, 2003: Fernando and Liliana are informed that the insurance company won’t cover the cost of Liliana’s surgery as a result of the September 30 termination. LAFE ultimately corrects its retroactive cancellation, and the insurance company pays for Liliana’s surgery in February 2004.
- November 3, 2005: Fernando and Liliana file a discrimination lawsuit against LAFE Foods and Marino.
In their lawsuit, the Roas claimed that LAFE Foods had retaliated against them in violation of the LAD by:
- Firing Liliana;
- Firing Fernando; and
- Cancelling Fernando’s insurance.
The Arguments in the NJ Supreme Court
In response to the Roas’ lawsuit, LAFE made two primary arguments:
- The lawsuit should be dismissed because it was filed too late.
- The October 27th cancellation of Fernando’s insurance policy was not unlawful retaliation, because it did not affect Fernando’s current or future employment.
LAD Statute of Limitations: Is the Lawsuit Barred?
Before turning to the question of post-termination retaliation, we should briefly discuss the other argument LAFE raised: Retaliation claims under the LAD must generally be brought within two years after the retaliation occurs. If they aren’t, then the court will dismiss them for being untimely filed. That time limit is known as the statute of limitations for discrimination claims.
Under that rule, the Roas’ lawsuit would have been time-barred, because November 3, 2005 was more than two years after the dates on which the Roas were fired and the date when LAFE Foods retroactively cancelled Fernando’s insurance.
But the statute of limitations is subject to some exceptions, two of which became central issues in this case:
- The discovery rule. The discovery rule sometimes applies to delay the start of a statute of limitations until a person discovers that he or she has been legally wronged.
- The continuing violation doctrine. When a company violates the LAD not through a discrete act (such as a retaliatory discharge), but through a “pattern or series of acts” that together violate the LAD (such as a hostile work environment), the statute of limitations begins to run on the date of the last act that was part of that “pattern or series.”
Regarding the continuing violation doctrine, the New Jersey Supreme Court held that the Roas could not rely on that exception. Liliana’s firing, Fernando’s firing, and the cancellation of Fernando’s insurance were all “discrete acts.”
However, because Fernando claimed he did not learn that his insurance had been cancelled until November 11, the Court held that the discovery rule could apply to that aspect of his claim. Because the Roas lawsuit was filed within two years of that date, that part of the lawsuit could go forward.
(Caution: Don’t rely on exceptions to the statute of limitations to save your case if it’s filed late. They are, after all, exceptions, and courts tend to interpret them narrowly.)
Post-Termination Employer Retaliation: Is it Illegal?
But what about LAFE Foods’ other argument? Does employer retaliation after termination of an employee violate the LAD?
YES. The LAD doesn’t limit its prohibition on retaliatory conduct to circumstances when it affects a person’s present or future employment. According to the Court, placing the company’s post-employment retaliatory conduct outside the reach of the LAD would undermine the purpose of the law, which itself says it should be “liberally construed.”
What Does All This Mean for You?
You may have already known that the LAD protects you against discrimination or retaliation by your current employer. But what Roa makes clear is that those protections last even after you’ve been terminated. In other words, an employer doesn’t get a free pass to retaliate against an employee just because it fired the employee first.