New Jersey Law Prohibits Discrimination Against Employees Who Display the U.S. Flag

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of a wide range of factors. In late 2001, the New Jersey Legislature passed a bill that adds display of the American flag to the list of protected categories. The law allows for New Jersey employment discrimination lawsuits to be filed, but also provides a defense for employers and sanctions for claims that lack “substantial justification.” In the eighteen years since the bill became law, it does not appear that New Jersey courts have issued any published decisions. This leaves portions of the law’s language up to interpretation.

Flag Discrimination Under the NJLAD

The “flag discrimination” statute, N.J. Rev. Stat. § 10:5-12.6, prohibits discrimination against an employee “for displaying the American flag on the employee’s person or work station.” Employers could still enact general bans on the display of symbols in the workplace, or possibly even more specific policies that focus on particular symbols. The statute appears to address employers who single out employees.

The employer could be liable for actual damages, punitive damages, attorney’s fees, and court costs. Unlike other discrimination claims under the NJLAD, an employee who brings a flag discrimination claim “without substantial justification” could be liable for the employer’s attorney’s fees and court costs.

The statute does not apply if the employee’s display of the flag “substantially and materially interfere[s] with the employee’s job duties.” This is where judicial interpretations would be useful, since they could offer examples of such interference.

Caselaw on Flag Discrimination in New Jersey

As mentioned earlier, published caselaw in New Jersey does not appear to address this type of employment discrimination. The U.S. Supreme Court has ruled on compulsory activities related to the flag. In West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), for example, the court held that students cannot be compelled to salute the flag or say the Pledge of Allegiance.

In 1995, the Third Circuit Court of Appeals ruled on an employment claim that is essentially the opposite of the situation contemplated by the NJLAD. The plaintiff, a corrections officer, objected to wearing a U.S. flag patch as part of his uniform. The court affirmed the denial of his request for a preliminary injunction. It found that he failed to show that wearing the patch was “expressive,” meaning that observers would discern a specific message from the patch.

Definition of “Substantially and Materially”

The application of New Jersey’s flag discrimination law will eventually turn on how courts interpret the term “substantially and materially interfere.” This is, by design, highly subjective language. Past decisions could offer a general idea of what it means for New Jersey workplaces.

In Tinker v. Des Moines Indep. Comm. Sch. Dist., the Supreme Court held that a ban on “expressive conduct” by students is unconstitutional unless it is shown that such conduct “would materially and substantially disrupt the work and discipline of the school.” 393 U.S. 503, 513 (1969). A 1980 decision by the Third Circuit noted that Tinker applies specifically to the school environment, as distinguished from the military and its emphasis on “overriding demands of discipline and duty.” Neither decision addresses standards for the workplace, but it seems reasonable to conclude that employees’ rights to expressive conduct in the workplace are somewhere between the military and academia.

The Resnick Law Group’s experienced and knowledgeable employment lawyers practice in New Jersey and New York. To schedule a confidential consultation to discuss your civil rights and options with a member of our team, please contact us today online, at 973-781-1204, or at 646-867-7997.

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