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New Jersey High Court Makes It Easier for Plaintiffs to Sue Under the Law Against Discrimination

By Richard J. Cino
  • April 15, 2005

The New Jersey Supreme Court has issued a ruling making it easier for individuals to clear the initial hurdle in a lawsuit claiming discrimination under the state's fair employment practices law. In a unanimous decision, the court ruled that the New Jersey Law Against Discrimination requires only that an employee be able to show that he or she "was actually performing the job prior to the termination." At this initial stage of LAD litigation, New Jersey courts will no longer consider evidence offered by an employer about an employee's failure to perform the job to the employer's legitimate expectations. [Zive v. Stanley Roberts, Inc., 867 A.2d 1133 (N.J. 2005).]

All LAD claims follow the analytical steps articulated by the U. S. Supreme Court in the landmark decision, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In a claim for wrongful discharge, this framework shifts the burden of proof from the plaintiff, to the employer, then back to the plaintiff as the litigation progresses.

Initially, to make the case, the plaintiff must demonstrate (1) she was a member of a protected class, (2) she was meeting her employer's legitimate expectations, (3) she was nevertheless discharged, and (4) the employer sought another employee for the same position. If the plaintiff succeeds at this stage, the burden of proof then shifts to the employer to counter the allegations by showing there was a legitimate, nondiscriminatory reason for the discharge. If the employer can show legitimacy for its actions, the final stage shifts the burden back again to the plaintiff. It is at this stage where the former employee must demonstrate that the explanation offered by the employer was merely a pretext and not the true reason for the discharge. This time, the plaintiff is required to prove not only that the employer's reason was false, but also that the employer's conduct was discriminatory.

In the Zive case, the plaintiff was employed as the head of the defendant's import sales division. Following several fiscally prosperous years, the plaintiff agreed to meet an annual sales target necessary to keep the division operating. The division ultimately fell far short of its projected annual earnings, and shortly thereafter, the plaintiff suffered a debilitating stroke. Following four months of medical leave, the plaintiff was terminated from his job.  

In the lawsuit, the plaintiff alleged he had been discriminated against in violation of the LAD due to his handicap. During the trial, the employer contended that the plaintiff had failed to show in the initial proof that he had meet the employer's "legitimate expectations" due to his failure to meet the annual sales goal. However, the plaintiff argued that it was only necessary for him to show that he was "objectively qualified" for his former position.

The New Jersey Supreme Court rejected the employer's argument, saying it was too great a burden under the LAD to require the typical plaintiff to prove he had met the employer's legitimate job expectations. The court noted that this subjective standard is not intended to be an onerous one. Rather, the court reasoned, mere evidence of longevity at the position will support the plaintiff's claim at this point in the litigation.

Although procedural in nature, this ruling reconfigures the litigation strategy for employers in the defense of LAD claims. For example, evidence of negative performance evaluations will no longer be considered at the initial stage of litigation. Evidence relating to the employer's subjective performance expectations shall not be used to defeat an employee's prima facie case. However, such evidence can be used to prove the employer's legitimate business reason in response to the plaintiff's prima facie case.

©2005 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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