Retaliation After Termination Can Violate New Jersey Law Against Discrimination

Earlier this year, the New Jersey Supreme Court ruled that an employer can violate the New Jersey Law Against Discrimination if it retaliates against an employee after it fires him. The Appellate Division decision reached the same conclusion in 2008, as discussed in a previous article. The New Jersey Law Against Discrimination prohibits employment discrimination, including harassment and discrimination based on gender, race, age, disability and religion. It also includes a provision that makes it unlawful for anyone to retaliate against someone because they objected to another actual or apparent violation Law Against Discrimination.

The case, Roa v. LAFE, involved a husband and wife who worked for Gonzalez and Tapanes Foods, Inc. (G&T), a New Jersey corporation which does business under the name LAFE Foods. The wife, Liliana Roa, claimed G&T’s Vice President, Marino Roa, had been involved in extramarital affairs with two other G&T employees. Liliana’s husband, Fernando Roa, eventually told Marino’s wife about the affairs. According to Fernando and Liliana, Marino then began a campaign of harassment against them, attempted to make their work lives miserable and threatened to fire both of them. When Fernando told G&T’s President that Marino was sexually harassing company employees, G&T ignored his complaint. G&T eventually fired both Fernando and Liliana.

Fernando and Liliana sued G&T and Marino for firing them in retaliation for Fernando’s complaint of sexual harassment. However, they filed their lawsuit more than two years after G&T fired them. As a result, the trial court dismissed their case because it was filed after the New Jersey Law Against Discrimination’s two year statute of limitations had expired.

However, on appeal the New Jersey Appellate Division reinstated Fernando’s case. It found he alleged that G&T and Marino continued their pattern of retaliation after they fired him, and that Fernando filed his lawsuit within two years after that pattern of retaliation ended. Specifically, Fernando alleged that G&T removed him from the company’s medical insurance a few weeks before the company fired him, and did not reimburse him for his medical expenses for about three months.

The New Jersey Supreme Court agreed with the Appellate Division that Fernando has a valid and timely whistleblower claim, even though the retaliation occurred after G&T fired him. It ruled that retaliation does not have to relate to present or future employment to be actionable under the New Jersey Law Against Discrimination.

The Supreme Court also recognized that the statute of limitations did not begin to run until Fernando knew or should have known that G&T cancelled his health insurance. It found that G&T kept him in the dark about cancelling his medical insurance until he attempted to use his benefits and was denied coverage. The Court ruled that, under the Law Against Discrimination, the statute of limitations does not begin to run until an employee either actually knows or is on notice that the company retaliated against him.

The Supreme Court also agreed that if Fernando can prove it was retaliatory, then G&T’s decision to cancel his medical insurance violates the New Jersey Law Against Discrimination. The Court ruled that retaliation is actionable if it is “materially adverse.” It explained that something is “materially adverse” if it is significant enough that it might convince an employee not to pursue a claim of discrimination in the future. In contrast, minor annoyances are not legally actionable even if they are retaliatory.

However, the New Jersey Supreme Court disagreed with the Appellate Division, ruling that Fernando filed his claim too late. Specifically, the Court found Fernando’s claim that G&T fired him in retaliation for his objection to sexual harassment was separate from his claim that G&T retaliated against him by removing him from its medical insurance plan too soon. Since Fernando filed his lawsuit more than two years after G&T fired him, his termination claim was outside of the statute of limitations.

Finally, the Supreme Court ruled that even though Fernando and Liliana were too late to sue G&T for firing them illegally, Fernando might be able to offer evidence that G&T fired them illegally to help prove G&T was retaliating against him when it took him off its insurance benefits. Specifically, the trial judge will have to decide whether Fernando can use evidence that G&T fired him and Liliana in retaliation for their complaints of sexual harassment to help prove his case.

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