In addition to prohibiting discrimination on the basis of factors like race, sex, and religion, most anti-discrimination statutes also prohibit employers from retaliating against employees who report alleged discrimination, who participate in an investigation of alleged unlawful acts, or who engage in other legally protected activities. In 2016, a jury in Bergen County, New Jersey found in favor of a former bank vice president who alleged that she was fired for reporting her concerns about gender discrimination. It found that the bank had retaliated against the plaintiff in violation of the New Jersey Law Against Discrimination (NJLAD) and awarded her $935,000 in damages. In June 2019, the New Jersey Superior Court, Appellate Division affirmed the verdict and award.
Discrimination “on the basis of” a protected category generally refers to discrimination that is motivated by an individual’s membership, or perceived membership, in a protected group. Statutes like the NJLAD also protect employees against discriminatory or retaliatory actions based on their good-faith efforts to enforce these rights. A prohibition on discrimination is not much help if an employer can still fire someone because they made an allegation of discrimination. The NJLAD therefore prohibits employers from “tak[ing] reprisals” against employees who “oppose any practices or acts forbidden under this act.” N.J. Rev. Stat. § 10:5-12(d).
The Equal Employment Opportunity Commission (EEOC) reports that retaliation is the most common complaint it receives. In fiscal year 2018, the agency received 39,469 complaints alleging retaliation under at least one of the statutes it enforces. This accounted for 51.6 percent of all complaints received that year. More than 30,000 complaints, or 40 percent, were specifically for retaliation under Title VII of the Civil Rights Act of 1964.
The plaintiff in the case mentioned above began working for the defendant in 1975. After multiple promotions, she attained the position of First Vice President in 2004. She alleged that her complaints about a “glass ceiling” kept her from rising any higher in the ranks. She regularly spoke with a Senior Vice President about gender discrimination, and she claimed that he discouraged her from pushing it, “based on his concerns it could result in retaliation.” The court noted how men outnumbered women in all senior positions at the bank during the periods when the plaintiff was employed there.
After decades with no significant employment issues, the plaintiff alleged that multiple investigations occurred in 2011 because of her gender discrimination complaints. She was effectively demoted when the bank moved her from a position that oversaw 60 employees to one that oversaw 10. Later that year, she was terminated.
The jury found that the bank engaged in unlawful retaliation, and that the bank’s chief operating officer was directly involved. The bank claimed on appeal that the plaintiff failed to prove that she was engaged in a “protected activity,” which is a required element of a retaliation claim under the NJLAD. The Appellate Division rejected this argument and affirmed the verdict and award. Although the plaintiff’s complaint to management did not use the specific words “gender discrimination,” the court found that gender discrimination was clearly the reason for the complaint, and it held that it was therefore a protected activity.
The Resnick Law Group’s retaliation attorneys are available to help you in a dispute with an employer in New Jersey or New York. Contact us today at 973-781-1204, at 646-867-7997, or online to schedule a confidential consultation to discuss your rights and options.