New Jersey Court Rules that Retaliation After You Are Fired Can Violate The New Jersey Law Against Discrimination

On July 7, 2008, in the case of Roa v. LAFE, the New Jersey Appellate Division ruled that retaliation that occurs after an employee was fired can violate the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. The New Jersey Law Against Discrimination prohibits discrimination in employment, housing and places of public accommodation. It also includes an anti-retaliation provision that makes it unlawful for:

any person to take reprisals against any person because that person has opposed any practices or acts forbidden under [the New Jersey Law Against Discrimination]… or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the New Jersey Law Against Discrimination].

N.J.S.A. § 10:5-12(d).

Roa involved Fernando and Liliana Roa, a husband and wife who worked for LAFE, a New Jersey corporation. Liliani claimed that LAFE’s Vice President, Marino Roa, engaged in two extramarital affairs with employees of LAFE. Fernando eventually told Marino’s wife about the affairs. According to Fernando and Liliani, Marino then began a campaign of harassment against them. When Fernando told the president of LAFE that Marino was sexually harassing company employees, LAFE ignored his complaint. LAFE eventually fired both Fernando and Liliani.

Fernando and Liliana sued LAFE and Marino for firing them in retaliation for Fernando’s complaint of sexual harassment, in violation of the New Jersey Law Against Discrimination. However, they filed their lawsuit more than two years after LAFE fired them. As a result, the trial court dismissed their case because it was filed after the LAD’s two year statute of limitations had expired.

However, on appeal the New Jersey Appellate Division reinstated Fernando’s case, and sent it back to the trial court for reconsideration. It did so because Fernando alleged that LAFE and Marino continued their pattern of retaliatory conduct toward him after LAFE fired him, and that Fernando filed the lawsuit within two years after that pattern of retaliation stopped.

Specifically, Fernando claimed that LAFE removed him from the company’s medical insurance several weeks before the company fired him, and did not reimburse him for his medical expenses until three months after LAFE fired him. Fernando claimed LAFE wrongfully terminating his insurance was another act of retaliation against him. The Appellate Division found that he filed his lawsuit within the statute of limitations because he filed it less than two years after he learned that LAFE had denied his insurance claim, and less than two years after LAFE finally reimbursed him for his medical expenses.

In concluding that this post-termination retaliation was legally actionable under the New Jersey Law Against Discrimination, the court relied on Burlington N. & Santa Fe Ry. Co. v. White, a United States Supreme Court opinion interpreting Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employment discrimination because of race, sex, national origin, color, and religion. Burlington recognizes that “the anti-retaliation provision [of Title VII] . . . is not limited to discriminatory actions that affect the terms and conditions of employment.” Rather, like the New Jersey Law Against Discrimination, “[t]he scope of the anti-retaliation provision [of Title VII] extends beyond workplace-related or employment-related retaliatory acts and harm.”

Roa is the first published New Jersey case to conclude that post-employment retaliation can violate the New Jersey Law Against Discrimination. That is significant because it suggests that other post-termination retaliatory actions would violate the New Jersey Law Against Discrimination. For example, an unwarranted opposition of an employee’s application for unemployment insurance benefits, an undeserved negative job reference, or a lawsuit or counterclaim against a former employee, could potentially violate the New Jersey Law Against Discrimination if they are motivated by retaliatory animus. Only time will tell how expansively or restrictively future courts will interpret Roa, and what types of post-termination retaliatory actions will be found to violate New Jersey law.

The employment law attorneys of Rabner Baumgart Ben-Asher & Nirenberg, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.