Litigation can be ugly, and not just for the named parties to a lawsuit. A plaintiff who files under the New Jersey Law Against Discrimination (the “LAD”) will necessarily call upon current or former co-workers whom she believes to have underlying knowledge of her complaint to testify to key facts. At the same time, her employer will often call upon these same co-workers to defend management in their testimony. Maybe the employer will apply not-so-subtle pressure upon co-workers to lie, hedge or conveniently “forget” facts – for example, the employer might suggest that favorable testimony will be rewarded with a nice raise. Or, the employer will outright ask the co-workers to lie or falsify evidence, with the unspoken threat that resistance will be met with termination.
So what’s the recourse for workers who don’t want to commit perjury? Do they have any legal protections against reprisals?
Yes. As a recent New Jersey appellate decision makes clear, a worker who refuses to lie or fabricate evidence against the plaintiff in a LAD claim may not be retaliated against for such conduct. If such a worker is fired or otherwise punished, it gives rise to the worker’s own, separate claim for retaliation under the LAD.
Let’s take a look at the caselaw to see this principle in action.
The Rios Decision
In Rios v. Meadowlands Hospital Medical Center, Docket No. A-3846-18T1, (App. Div. April 14, 2020), the plaintiff, Rios, was an EMS paramedic for the defendant Hospital. In 2013, the Hospital terminated Rios’s co-worker, a woman by the name of Bailey. Subsequently, in 2014, Bailey sued the Hospital for sexual harassment. Importantly, Bailey never told Rios that she was subject to harassment, and Rios did not witness and was unaware of any such harassment. In fact, Rios was unaware Bailey was even planning on filing a lawsuit. When it came to the allegations of Bailey’s complaint, Rios simply had no knowledge.
Nevertheless, Rios’s EMS supervisor made clear that he wanted Rios to not only support the Hospital but lie and fabricate evidence on its behalf. Rios’s boss:
- Repeatedly told him he needed to be a “team player”, and that, as an employee, he was “required to protect the hospital.”
- Directed Rios to seek a restraining order against Bailey (presumably to provide false proof that she was threatening).
- Directed Rios to state to Bailey’s lawyers that Bailey gave the Hospital and its employees “a hard time”, didn’t want to report to work, and created a “hostile work environment.”
- Directed Rios to “tell all these [other employees] to get any complaints” against Bailey and submit them in writing.
Rios told his boss that he was not comfortable with and objected to these directives. Afterwards, he was demoted and then fired. Rios then filed a retaliation claim against the Hospital under the LAD.
Initially, a lower court dismissed his suit on the mistaken basis that Rios had to prove that he had a reasonable and good faith belief in the validity of Bailey’s discrimination claim; since Rios in fact had no knowledge about Bailey’s complaint, the court reasoned he could not show a reasonable, good faith belief in it. However, the appellate court corrected this misinterpretation of the LAD’s retaliation protections. Specifically, the court held that all Rios needed to demonstrate was his good faith and reasonable basis for opposing the Hospital’s actions as violations of the LAD. The court was:
“. . . satisfied [Rios] sustained that burden by presenting evidence he refused [the Hospital’s] requests that he seek a meritless restraining order against Bailey and make misrepresentations concerning her . . .
. . . [Rios] demonstrated he had a good faith and reasonable belief [the Hospital’s] requests constituted efforts by defendant to unlawfully retaliate against Bailey for the filing” of her claim.
The court’s decision is consistent with the remedial purpose of the LAD in fighting workplace discrimination. The law is designed to encourage workers to testify truthfully, even if it’s to their employer’s detriment, without fear of reprisal.
It is illegal for your employer to request you to lie, hedge, or fabricate testimony or evidence in defense of a co-worker’s LAD claim. If you’re faced with such a request, the LAD prohibits your employer from retaliating against you for refusing it, and allows you to sue your employer if such retaliation in fact occurs.
If you are, in fact, called upon to submit testimony or other evidence in a co-workers LAD claim, the rules are quite simple: Don’t speculate in your answers, answer only as to what you know, and answer truthfully.
Are you concerned your employer is pressuring you to lie in defense of a co-workers discrimination lawsuit? Call our offices today for a free consultation.