New Jersey Court Finds Emphatic Response to Discriminatory Remark Can Be Legally Protected

New Jersey’s Appellate Division recently upheld a jury verdict which found Avaya, Inc. liable for retaliation in violation of the New Jersey Law Against Discrimination. The case is LaFranco v. Avaya, Inc. It involves an employee who responded to his supervisor’s anti-Semitic statement by emphatically indicating that he is Jewish. In an unpublished opinion, the appellate court found the tone and context of Mr. LaFranco’s response indicated he was offended by the statement. In addition, Mr. LaFranco reasonably believed the comment was religious discrimination. Accordingly, his response was a legally protected objection to unlawful discrimination.

Mr. LaFranco worked as a salesperson for Avaya, a telecommunications company, for more than 12 years. He frequently exceeded his sales quotas and received large commissions. Prior to 2002, all of his performance reviews were positive.

In August 2001, Mr. LaFranco reported to his boss, Patrick Iraca, that he had been improperly denied $10,000 in commissions. Mr. LaFranco subsequently reminded Mr. Iraca of the issue, and suggested that Mr. Iraca should discuss it with his boss. In response, Mr. Iraca asked, in a disgusted voice, “What are you, a Jew?”

Mr. LaFranco, who is half Jewish, was shocked and insulted by the question. He turned and looked at Mr. Iraca before he responded, “Yeah, I am.” He then stared at Mr. Iraca for several seconds before Mr. Iraca turned and stormed out of the room. Mr. Iraca did not speak to Mr. LaFranco for the rest of the evening.

From that point on, Mr. Iraca’s attitude toward Mr. LaFranco was hostile and malicious. Among other things, he undermined Mr. LaFranco’s sales efforts, subjected him to unnecessary criticism and scrutiny, failed to give him credit for many of his sales, disproportionately increased his sales quota, decreased his sales territory, excluded him when he redistributed a former salesperson’s territory, and berated him in front of his peers. Mr. Iraca also included unwarranted criticism in Mr. LaFranco 2002 performance review, such as falsely accusing him of insubordination. He then placed Mr. LaFranco on a performance development plan, because it was a necessary step before he could fire him. Shortly thereafter, Avaya fired Mr. LaFranco.

The New Jersey Law Against Discrimination prohibits employers from retaliating against an employee because he opposes a practice he reasonably believes violates the Law Against Discrimination. For example, it is unlawful to retaliate against an employee who makes a good faith objection to discrimination or harassment due to age, race, gender, or religion.

In LaFanco, the jury found that Mr. LaFranco proved Avaya retaliated against him because he had opposed an act he reasonably believed was discriminatory. The Appellate Court upheld the jury’s verdict. It found Mr. LaFranco reasonably believed Mr. Iraca’s question, “What are you, a Jew?,” was an act of religious discrimination. It also concluded that under the circumstances, including Mr. LaFranco’s tone and demeanor, his response “Yeah, I am” clearly opposed Mr. Iraca’s discriminatory practice.

The Appellate Division affirmed Mr. LaFranco’s jury verdict of $158,310 in lost wages, $1,000 in emotional distress damages, more than $10,000 in prejudgment interest, and over $365,000 in attorney’s fees. The jury also awarded Mr. LaFranco $45,000 for failing to pay him commissions in breach of his employment contract.