2.22 UNLAWFUL EMPLOYMENT PRACTICES UNDER THE NEW JERSEY LAW AGAINST
DISCRIMINATION (LAD) — RETALIATION
(N.J.S.A. 10:5-12(d)) Model
Jury charge NJ
NOTE TO THE COURT
The Law Against Discrimination (LAD)
has a specific subsection, N.J.S.A. 10:5-12(d)[1],
addressing employer retaliation against employees for engaging in “protected”
activity. It first identifies two
categories of employee activity that are “protected” under the Law:
(1)
opposing practices or acts that are unlawful
under the LAD, i.e., complaining about, or protesting against,
discrimination in the workplace; [2]
(2) filing a complaint or testifying or assisting
in any proceeding under this act;[3]
In addition, this section of the LAD
provides that it is unlawful for an employer “to coerce, intimidate, threaten
or interfere with any person in the exercise or enjoyment of, or on account of
that person having aided or encouraged any other person in the exercise or
enjoyment of, any right granted or protected by this act.” N.J.S.A. 10:5-12(d).
The court should be aware that the jury
charge to be given in a retaliation case varies depending on the type of
“protected activity” in which the employee claims to have engaged. Those differences are explained below in the
course of discussing the text of the Charge.
Finally,
as is the case when charging the jury under Charge 2.21 (Disparate Treatment),
the court should not charge the prima
facie elements of the plaintiff’s case, unless those elements remain at
issue at the time of trial, having not already been decided as a result of
motion practice either at the summary judgment stage or at the close of
evidence at trial, or having not been stipulated to by the parties. For a full discussion of when and why the prima facie elements should not be
charged to the jury, see the Introductory Note to the Court in Charge 2.21.
Plaintiff
claims that the defendant retaliated against him/her because of [insert alleged LAD protected activity]. Defendant denies these allegations and
instead maintains that it [insert alleged
retaliatory action] because [insert
defendant’s explanation, such as “plaintiff’s job performance was inadequate”, “plaintiff’s
job was eliminated”, etc.].
To prevail on his/her claim,
the plaintiff must prove all of the following elements by a preponderance of
the evidence:
First: The plaintiff [insert alleged LAD protected activity];[4]
Second: The plaintiff was subjected to
retaliation at the time, or after, the protected conduct took place.[5]
Third: There was a causal connection
between [insert alleged retaliatory action]
and [insert alleged LAD protected
activity], sufficient to show that plaintiff’s [insert alleged LAD protected
activity] played a role in the decision and made an actual difference in the
defendant’s decision to [insert alleged retaliatory action].
I will now discuss each of these three
elements with you in more detail:
(1)
The “Protected Activity” Element of
Plaintiff’s Case:
NOTE TO COURT
If
the first element of the plaintiff’s case -- whether the plaintiff engaged in
protected activity -- remains at issue, the Court should charge the jury as
follows, depending on whether the case is an “opposition” case, or a
“participation” case.
For “opposition” cases,
where plaintiff alleges he/she complained to his/her employer about discrimination,
and that fact remains at issue in the case, charge the following:
To establish this first
element of his/her case, the plaintiff need not prove the merits of his/her [describe the plaintiff’s protected activity], but only that, in
doing so, he/she was acting under a good faith and reasonable belief[6]
that the [plaintiff’s or insert
someone else’s name] right to be free from discrimination on the basis of [insert the legally protected characteristic]
was violated.
For “participation” cases, where the plaintiff
alleges he/she filed a complaint, testified or assisted in any proceeding
within the meaning of the LAD, and that fact remains at issue in the case,
charge the following:
To establish this first
element of his/her case, the plaintiff must prove that he/she filed a complaint
or testified or assisted in a proceeding [such as a proceeding before the
Division on Civil Rights or the Equal Employment Opportunity Commission], in
which it was alleged that his/her employer discriminated against a person.
(2)
The “Retaliation” (“Adverse Action”) Element of Plaintiff’s Case:
NOTE TO COURT
If the second element of the plaintiff’s
case -- whether defendant took an adverse action against plaintiff -- remains
at issue, the court should charge the jury as follows:
To
establish the second element, the plaintiff must show that he/she was subjected
to retaliation by his/her employer. The
term retaliation can include, but is not limited to, being discharged, demoted,
not hired, not promoted or disciplined.
In addition, many separate but relatively minor instances of behavior
directed against the plaintiff may combine to make up a pattern of retaliatory
behavior.[7]
(3)
The “Causal Connection” Element of Plaintiff’s
Case:
The third and final element is whether the plaintiff
can prove the existence of a causal connection between the protected activity
and the alleged retaliation by his/her employer. Ultimately, in considering this third element
of the plaintiff’s case, you must decide whether the plaintiff’s [insert alleged LAD protected activity]
played a role in and made an actual difference in the defendant's decision[8] to
[insert alleged retaliation action]. It is the plaintiff’s burden to prove that it
is more likely than not that, the defendant retaliated against the plaintiff
because of the plaintiff’s [insert alleged
LAD protected activity]. That
is the ultimate issue you must decide: did the defendant [insert alleged retaliatory action]
because of the plaintiff’s [insert
alleged LAD protected activity].
The plaintiff may prove this directly, by proving that a retaliatory
reason more likely than not motivated the defendant’s action, or indirectly, by
proving that the defendant’s stated reason for its action is not the real
reason for its action.
You
may find that the defendant had more than one reason or motivation for its
actions. For example, you may find that the defendant was motivated both by the
plaintiff’s [insert alleged LAD protected
activity] and by other, non-retaliatory factors, such as the
plaintiff’s job performance. To prevail,
the plaintiff is not required to prove that his/her [insert alleged LAD protected activity] was the
only reason or motivation for the defendant’s actions. Rather, the plaintiff must only prove that his/her
[insert alleged LAD protected
activity] played a role in the decision and that it made an
actual difference in the defendant’s decision.[9] If you find that the plaintiff’s [insert alleged LAD protected activity]
did make an actual difference in the defendant’s decision, then you must enter
judgment for the plaintiff. If, however,
you find that the defendant would have made the same decision regardless of the
plaintiff’s [insert alleged LAD protected activity], then you must enter
judgment for the defendant.
Because direct proof of intentional
retaliation is often not available, the plaintiff is allowed to prove
retaliation by circumstantial evidence.
In that regard, you are to evaluate whatever indirect evidence of
retaliation that you find was presented during the trial.[10]
One kind of circumstantial evidence can involve
the timing of events, i.e., whether
the defendant’s action followed shortly after the defendant became aware of the
plaintiff’s [insert alleged LAD protected
activity]. While such timing may be
evidence of retaliation, it may also be simply coincidental – that is for you
to decide.
Another kind of
circumstantial evidence might involve evidence that the defendant became
antagonistic or otherwise changed his/her demeanor toward the plaintiff after
the defendant became aware of the plaintiff’s protected activity. But again, this may be evidence of
retaliation, or it may have no relationship to retaliation at all, but it is
for you to decide.
In addition, you should consider whether the
explanation given by the defendant for his/her action was the real reason for his/her
actions. If you don’t believe the reason given by the defendant is the real
reason the defendant [insert
alleged retaliatory action] you may, but are not required to, find
that the plaintiff has proven his/her case of retaliation. You are permitted to do so because, if you
find the defendant has not told the truth about why it acted, you may conclude
that it is hiding the retaliation.
However, while you are permitted to find retaliation based upon your
disbelief of the defendant’s stated reasons, you are not required to do
so. This is because you may conclude
that the defendant’s stated reason is not the real reason, but that the real
reason is something other than illegal retaliation.
The plaintiff at all times bears the ultimate
burden of proving to you that it is more likely than not that the defendant
engaged in intentional retaliation. To
decide whether the plaintiff has proven intentional retaliation, you should
consider all of the evidence presented by the parties, using the guidelines I
gave in the beginning of my instructions regarding evaluating evidence
generally, such as weighing the credibility of witnesses.[11] Keep in mind that in reaching your
determination of whether the defendant engaged in intentional retaliation, you
are instructed that the defendant’s actions and business practices need not be
fair, wise, reasonable, moral or even right, so long as the plaintiff’s [insert alleged LAD protected activity]
did not play a role and make an actual difference in the defendant’s decision
to [insert alleged retaliatory
action].
I remind you that
the ultimate issue you must decide is whether the defendant engaged in illegal
retaliation against the plaintiff by [insert
alleged retaliatory action], and that the plaintiff has the burden
to prove that retaliation occurred.
[1] N.J.S.A. 10:5-12(d) provides in full as follows: “[It is
unlawful] [f]or any person to take reprisals against any person because that
person has opposed any practices or acts forbidden under this act or because
that person has filed a complaint, testified or assisted in any proceeding
under this act or to coerce, intimidate, threaten or interfere with any person
in the exercise or enjoyment of, or on account of that person having aided or
encouraged any other person in the exercise or enjoyment of, any right granted
or protected by this act.”
[2]
These cases are often referred to as
“opposition” cases.
[3] These cases are often referred to as “participation”
cases.
[4] This issue
is not charged to the jury if the court has already decided it as a matter of
law or the parties have stipulated to it.
[7] See
Nardello v. Twp. of Voorhees, 377 N.J.
Super. 428, 433-436 (App. Div. 2005); Green
v. Jersey City Bd. of Educ., 177 N.J.
434, 448 (2003).
[8] See Donofry v. Autotote Systems, Inc.,
350 N.J. Super. 276, 295 (App. Div.
2001); see also Charge 2.21 for an
alternate formulation to be used with the jury.
[9] See Charge
2.21 and cases cited therein at fn. 2; see
also Donofry, supra, 350 N.J. Super. at 296 (“Plaintiff need not prove that his whistle-blowing
activity was the only factor in the decision to fire him.”); Kolb v.
Burns, 320 N.J. Super. 467, 479
(App. Div. 1999) (burden on plaintiff is to show “retaliatory discrimination
was more likely than not a determinative factor in the decision”).
[10]
The court may refer to specific types of
indirect evidence presented during the trial, such as prior conduct and/or
comments of the parties, etc.
[11] The court
should refer to any other general instructions where appropriate.
