Last updated Aug. 31, 2018.
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 York and 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, New York Human Rights Law, 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, New York Human Rights Law, 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.
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 York and New Jersey do things differently. Rather than requiring that a worker first file a complaint with a government agency, the two states permit such complaints (filed with the Division on Civil Rights in New Jersey and Division of Human Rights in New York), 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, New York, or federal law. Contact us now for a free consultation.