Many victims of workplace discrimination choose not to remain silent about the issue. They complain of disparate treatment and harassment to their direct supervisors, human resources departments, or even higher up the chain of command. In some cases, they are compelled to file external complaints, whether through the court system or through administrative agencies like the EEOC.
An employer should respond to any worker complaint of discrimination with a thorough investigation and, if necessary, remedial measures. Unfortunately, however, some employers respond with retaliation. Complaining workers suddenly find themselves written-up for pretextual offenses, demoted, their hours cut, or in extreme cases, even terminated.
All these acts constitute retaliation, and they are all illegal under both state and federal law.
The Law Prohibits Retaliation Against Employees Who Exercise Their Rights
When Congress and the state legislatures of New Jersey enacted anti-workplace-discrimination laws, they realized that businesses would try to game the system by retaliating against employees who complain about unlawful discrimination.
To combat that risk, the federal Civil Rights Act and New Jersey Law Against Discrimination all include protections against retaliation by employers when an employee complains of illegal discrimination.
For example, the New Jersey Law Against Discrimination (the “NJLAD”) protects any worker who:
- Opposes practices or acts of workplace discrimination that are unlawful under the NJLAD (such as protesting such practices or acts to his/her employer);
- Seeks legal advice regarding rights under the NJLAD and shared relevant information with a lawyer or governmental entity; or
- Files a complaint, testifies or otherwise assists in any proceeding brought pursuant to the NJLAD.
Employers are prohibited from retaliating against such workers by coercing, intimidating, threatening, or interfering with their exercise or enjoyment of rights granted under the NJLAD.
Examples of Unlawful Retaliation
The anti-retaliation provisions of the NJLAD and federal Civil Rights Act are worded broadly enough to capture virtually any kind of adverse employment action for exercising one’s rights under those statutes.
Nevertheless, employers still try to prevent workers from exercising their statutory rights or punish them for having done so by:
- Wrongfully terminating their employment;
- Cutting their pay or benefits;
- Passing over them for promotion;
- Giving unjustifiably low-performance reviews;
- Re-assigning them to lower-paying or less-prestigious positions;
- Subjecting them to workplace harassment; or
- Giving false reports to subsequent prospective employers to dissuade them from hiring the workers.
The prohibitions against retaliation contained in anti-discrimination statutes would be of little use if they did not provide a remedy for wronged workers. But, fortunately, the statutes do define what remedies are available to a worker who has been retaliated against in violation of the law. These remedies include:
- Compensatory damages, which are an award of money to compensate a person for his or her out-of-pocket expenses (e.g., transportation to job interviews after a wrongful termination), and mental anguish.
- Punitive damages, which are damages beyond what is necessary to compensate the employee intended specifically to punish particularly egregious behavior by employers.
- Reinstatement and back pay. An employer can be required to reinstate the position of a worker who was wrongfully terminated or re-assigned. In addition, the employer may be ordered to provide back pay to an employee whose compensation was reduced in retaliation for exercising his or her rights under the law.
Can My Employer Retaliate Against Me After I Am No Longer Employed By The Company?
Roa v. LAFE: What happened?
In Roa v. LAFE, 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 the 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.
How to Protect Yourself Against Unlawful Retaliation in the Workplace
State and federal anti-retaliation laws provide different avenues for vindicating those rights. Complaints against an employer under the federal Civil Rights Act must initially be filed with the Equal Employment Opportunity Commission (EEOC). The EEOC may then prosecute a case against the employer or authorize the worker to file one for him- or herself.
New Jersey does things differently. Rather than requiring that a worker first file a complaint with a government agency, the state permits such complaints (filed with the Division on Civil Rights), but also allow the worker to file a lawsuit immediately (subject to some exceptions).
In short, the procedural rules that govern workplace retaliation claims can be complex, and failure to follow those rules (or the relatively short timelines for filing a claim) can prevent your claim from being heard at all. If you find yourself the target of retaliation, you need the assistance of an experienced New Jersey retaliation lawyer.
Zatuchni & Associates has successfully represented scores of employees in retaliation claims, often brought in conjunction with discrimination claims under New Jersey or federal law. Contact us now for a free consultation.