New Jersey Employment Lawyer Blog

The New Jersey Appellate Division recently ruled that it is possible for an employee to prove he was fired for a discriminatory reason even if the person who made the ultimate decision to fire him did not have any discriminatory animus. Specifically, that can happen if the employee's supervisor did something to bias the decisionmaker, or if the decisionmaker's involvement in the process was a mere formality.

The case, Kwiatkowski v. Merrill Lynch, involved Merrill Lynch's decision to fire one of its employees, Darren Kwiatkowski. Mr. Kwiatkowski is gay. Merrill lynch fired him after he deliberately disobeyed an instruction from his supervisor, Theresa Wonder.

Immediately after Mr. Kwiatkowski's insubordination, Ms. Wonder reported him to her supervisor, Sandra Givas, and recommended that the company should fire him. There was evidence that Ms. Wonder knew Mr. Kwiatkowski was gay and was biased against him on that basis. However, there was no evidence that Ms. Givas even knew that he was gay.

Several weeks later, Merrill Lynch fired Mr. Kwiatkowski for insubordination. Although Mr. Kwiatkowski admitted that he had been insubordinate, he contended that the punishment was too severe, and that Merrill Lynch really fired him because of his sexual orientation.

After he was fired, Mr. Kwiatkowski experienced panic attacks, sleeplessness, nightmares, depression, upset stomach, loss of appetite, shortness of breath, chest pain, weakness, and emotional instability. His psychiatrist diagnosed him with post-traumatic stress disorder.

Prior to the appeal, the trial court had dismissed the case, finding that since the decisionmaker, Ms. Givas, did not even know that Mr. Kwiatkowski was gay, Merrill Lynch could not have possibly fired him based on his sexual orientation.

But the New Jersey Appellate Division disagreed, finding Ms. Givas' decision was tainted by Ms. Wonder's recommendation to fire him, which a jury reasonably could have concluded was motivated by his sexual orientation. The Court relied on the fact that, since Ms. Givas had no actual knowledge of Mr. Kwiatkowski's job performance or the misconduct that caused Ms. Wonder to recommend firing him, she must have relied heavily on information from Ms. Wonder, including her recommendation to fire him. Accordingly, even though Ms. Givas made the ultimate decision to fire Mr. Kwiatkowski, a jury could reasonably conclude that Ms. Wonder caused Merrill Lynch to fire him for a discriminatory reason.

The court noted that there are different names for this theory which other courts have used in different contexts, including "subordinate bias," which occurs when a decisionmaker relies on biased discriminatory information or opinions from a subordinate, the "rubber stamp," which occurs when the decisionmaker merely approves a subordinate's discriminatory decision, and the "cat's-paw," which occurs when a biased subordinate uses the decisionmaker as a pawn in a scheme to discriminate against the employee.

These theories of liability recognize that termination decisions often can be complex, and frequently someone other than the final decisionmaker can influence employment decisions. At the same time, they still require the employee to prove that discrimination made a difference in the termination decision.

It is important to note that the Kwiatkowski case is unpublished, meaning the Appellate Division's decision is not legally binding on other New Jersey courts. However, courts are still likely to consider it when they decide similar cases under the New Jersey Law Against Discrimination.

The employment law and civil rights lawyers at The Nirenberg Law Firm, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

On August 13, 2008, in Kwiatkowski v. Merrill Lynch, New Jersey's Appellate Division ruled that a single anti-gay comment can create a hostile work environment in violation of the New Jersey Law Against Discrimination. In particular, the court ruled that a jury could find that an employee had been unlawfully harassed based solely on his supervisor calling him a "stupid fag" once, under her breath. That is important because the law requires harassment to be either sufficiently severe (bad enough) or pervasive (frequent enough) that the terms and conditions of employment have been materially changed and the employee's work environment is hostile.

The decision in that case is unpublished. That means it is not binding on other New Jersey courts. However, it is still a significant decision for its reasoning and analysis, which other courts are likely to consider, if not follow.

The plaintiff in that case, Mr. Kwiatkowski, is gay. Although he told only a few of his coworkers, he assumed it was common knowledge that he was gay.

Mr. Kwiatkowski alleged that his immediate supervisor, Theresa Wonder, interrupted Mr. Kwiatkowski's conversation with a coworker and, for no apparent reason, said "I can't believe you. I was standing right there! How dare you be so unprofessional!" before storming off. He further claimed that a few minutes later, Ms. Wonder passed him again and called him a "stupid fag" under her breath. Not surprisingly, Mr. Kwiatkowski was shocked and highly offended by her derrogatory comment. When he left work that day, his knees buckled, he began to hyperventilate, and he no longer felt safe speaking to anyone at work.

In contrast, Ms. Wonder denied ever making the discriminatory comment, and contended that she did not even know if Mr. Kwiatkowski was gay. She claimed that when Mr. Kwiatkowski was talking to a fellow employee, she heard him refer to her as a "bitch." She told him this was inappropriate language, and he became irate and threw his hands up in the air. She then asked to speak with him in a conference room, and at that meeting told him she was offended by his remark and warned him that the department had zero tolerance policy.

Before the case reached the appellate court, the trial court ruled that a jury did not need to decide whether Ms. Wonder made that discriminatory comment because, even if she had, it did not rise to the level of actionable harassment. Specifically, the lower court concluded that although the comment was extremely derogatory and offensive to gay men, and Ms. Wonder made the comment because of Mr. Kwiatkowski's sexual orientation, it was not so severe or pervasive that a reasonable person would believe the conditions of his employment had been altered and his working environment was hostile and abusive. In other words, the lower court found it was bad, but not bad enough to be unlawful harassment.

The Appellate Division disagreed. Although it noted that it is the "rare and extreme" case in which a single incident is so severe that it can create a hostile work environment, the phrase "stupid fag" is a statement that would make someone in Mr. Kwiatkowski's position "question his identity and his decision to identify himself as a gay man in a straight world." Accordingly, the appellate court reversed the lower court's decision, and sent the case back to be decided by a jury.

In the same decision, the Appellate Division reviewed the trial court's decision to dismiss Mr. Kwiatkowski's claim that Merrill Lynch fired him because of his sexual orientation. That aspect of the decision is discussed in a seperate article, which you can read here.

The employment lawyers at the Nirenberg Law Firm, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

What Does it Mean to Mitigate Your Damages?

In a discrimination, retaliation, or other wrongful termination case, the largest component of your damages is often your lost wages. The starting point to calculate those damages is to figure out how much you would have received from your former employer if you had not been fired.

However, the law requires you to mitigate your economic losses, meaning you must make reasonable efforts to replace your lost salary and benefits. Accordingly, your economic damages will be reduced by what you earn from a new job you find to replace the job you lost, as well as any additional amount you could have earned if you had made a reasonable (or more reasonable) effort to find another job.

Why Does the Law Require You to Mitigate Your Damages?

There are several reasons why the law requires you to mitigate your economic damages in an employment discrimination or retaliation case. One reason stems from the fact that the primary purpose of awarding lost wages is to make you "whole" by reimbursing you for the economic loss you suffered. If your losses were not offset by what you actually earn from another job, and you recovered what you would have earned from your previous employer if you had not been fired, then you would be made more than whole. Mitigation also encourages you to seek employment, because it is considered a benefit to society for you to return to the workplace.

What is a Reasonable Effort to Find A Similar Job?

Defining what is a "reasonable job search effort" depends on the circumstances, and ultimately is determined by a judge or jury. What is clear is that it is not reasonable for you to do little or nothing to find another job, unless you are medically unable to work or if there is some other reason why it is reasonable to delay your job search, such as if you would have been on a family leave, medical leave, or maternity leave even if you had not been fired.

Otherwise, you must take reasonable steps to find a similar job. The more you do to find another job, the more likely it is that you will be found to have acted reasonably.

What is Considered a Similar Job?

To be considered similar, a job must be comparable in terms of the type of work, the location of the job, and the compensation. However, similar does not mean identical or nearly identical. Rather, depending on factors such as your skill, experience, and level of education, a job might be considered similar even if it is in a different industry, requires a further commute, pays a lower salary, and/or offers lower benefits. Ultimately, the question comes down to whether it is reasonable under the circumstances for you to reject the job.

Do I Have to Lower My Sights At Some Point?

Generally, the longer it takes you to find another job, the more flexible the law requires you to be with respect to what job you are willing to accept. In other words, the longer you remain unemployed, the more you need to lower your sights and consider jobs with lower pay, worse benefits, different work, or a longer commute.

As a result, if you are unemployed for a relatively long period, your lost wage damages claim could potentially be cut off unless you expand the type of jobs you seek, reduce your salary requirements, or enlarge the geographical area in which you seek employment.

Whether and to what extent you must lower your sights depends on your skills and qualifications possessed, and whether your family status restricts your ability to accept a job in another geographic area. The overriding principal is that you must do what is reasonable under the circumstances.

How Do I Prove That I Made Reasonable Efforts to Mitigate My Damages?

Especially in difficult economic times, it often takes a long time to find another suitable job. Discrimination, retaliation, and other forms of wrongful discharge are bad enough. You do not want to have your damages limited because it looks as if you did not search hard enough for a new job. As a result, it is very important that you keep as much documentation as possible demonstrating your diligent job search efforts.

Practical Tips

To the extent practical, you should try to keep:

1. Copies of every job ad to which you responded, including printouts of online job ads.

2. Copies of each version of your resume you sent out.

3. Copies of each job applications or cover letter you sent out.

4. Copies of each acknowledgment letter, rejection letter, and offer letters you received.

5. Your date book, computer calendar, PDA calendar, or other calendar showing dates of job interviews or other job search efforts.

6. Any other documents that shows that you searched for a job.

If you have been fired, laid off, or otherwise wrongfully terminated, you should consider contacting an experienced employment lawyer for further information regarding your potential legal claim.

The lawyers at our employment law and civil rights law firm, The Nirenberg Law Firm, LLC, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.