The New Jersey Employment Law Firm Blog
A major new decision by the New Jersey Appellate Division has strengthened the rights of employees fighting workplace sexual harassment and discrimination. In C.S. v. Brick Recycling Company, the court clarified a critical standard regarding the “investigation shield” that employers frequently use to hide evidence in New Jersey Law Against Discrimination (LAD) cases. Under New Jersey law, when an employer claims they acted in “good faith” by conducting an internal investigation, they cannot use the attorney-client privilege to hide behind-the-scenes documents that could expose a flawed or biased process.
The case involved C.S., a truck driver who reported that he was being stalked and subjected to unwanted sexual advances by the company’s Corporate Financial Controller, M.R. Although the company president ordered no contact, M.R. immediately retaliated by leaving an angry note on C.S.’s car. The company eventually hired an outside attorney to conduct an investigation, but C.S. was forced to resign while the investigation was still ongoing. C.S. filed a constructive discharge and sexual harassment lawsuit under the LAD, and in response, the employer asserted a “good faith” defense. However, when C.S.’s attorneys attempted to evaluate whether the investigation was actually conducted in good faith, the company refused to turn over 36 pages of the investigator’s personal notes, internal emails, and draft reports, claiming they were protected by attorney-client and work-product privileges.
Under the landmark New Jersey Supreme Court decision in Payton v. New Jersey Tpk. Auth., an employer who relies on an internal investigation as an affirmative defense waives the privilege for documents related to that investigation. However, Payton left a loophole, stating that documents only “tenuously related” to the defense could still be withheld. In C.S., the Appellate Division defined “tenuously related” for the first time. The court ruled that any document is discoverable if it could either substantiate the employer’s defense or impeach it. If a document shows that the employer unduly curtailed the investigation, interfered with the attorney’s independence, or undermined the integrity of the process, it is sufficiently related to the defense and must be disclosed.
The Appellate Division rejected the company’s categorical request to withhold the investigator’s personal meeting notes and drafts. Instead, the court remanded the case to the trial court to perform a page-by-page, line-by-line review to ensure that facts are disclosed while only genuine, unrelated legal advice is redacted. This ruling means employers can no longer present a polished final report to a jury while hiding the messy, biased, or restricted reality of how that report was actually put together.
Fortunately, employment laws in New Jersey are designed to protect workers and demand corporate transparency. If you have been subjected to sexual harassment or a hostile work environment, and your employer’s internal investigation felt like a cover-up, your rights may have been violated. Contact the Resnick Law Group today at (973) 781-1204 to discuss your situation with an experienced employment attorney.