Article 1, §9 of the New Jersey Constitution guarantees the right to a jury trial in all civil cases. N.J.S.A. Const. Art. 1, ¶ 9.

The importance of the fundamental right to a jury trial under our system of justice was expressed by the late William H. Rehnquist, Chief Justice of the United States Supreme Court, as follows:

The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary… Trial by a jury of laymen rather than by the sovereign’s judges was important to the founders because juries represent the layman’s common sense, the ‘passional elements in our nature, and thus keep the administration of law in accord with the wishes and feelings of the community. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343, (1979) (Rehnquist, J., dissenting) (citation omitted).

Fundamental Principles of Summer Judgment

Despite the constitutional right to a jury trial, under Rule 4:46-2 of the New Jersey Court Rules a court may grant summary judgment dismissing a plaintiff’s case where a defendant (movant) demonstrates that (1 ) there is “no genuine issue as to any material fact challenged, and (2) that the moving party is entitled to a judgment or order as a matter of law.”

In the seminal case of Brill v. Guardian Life Insurance, 142 N.J. 520, 528-529 (1995), the Court stated that summary judgment may be granted where “the evidence is so one-sided that one party must prevail as a matter of law.”

In a motion for summary judgment if there is the slightest doubt as to the existence of a material issue of fact relevant to a claim, the motion should be denied. Saldana v. DiMedio, 275 N.J. Super. 488, 494-95 (App. Div. 1994).

Further, in considering a motion for summary judgment, the court must view all facts in the light most favorable to the non-moving party, which is usually the plaintiff. Globe Motor Co. v. Idewgdalev, 225 N.J. 469, 479 (2016).

Additionally, genuine issues of material facts as to intent or credibility cannot be decided on a motion for summary judgment, as those issues are fundamentally reserved only for a jury to decide in a trial. McBarron v. Kipling Woods, 365 N.J. Super. 114, 117, (App. Div. 2004).

Furthermore, a court sitting on summary judgment cannot weigh the evidence and decide issues of material facts based on the papers submitted. On a motion for summary judgment, “it [is] not the court’s function to weigh the evidence and determine the outcome but only to decide if a material dispute of fact existed”). See Parks v. Rogers, 176 N.J. 491, 502 (2003); Caballero v. Cablevision Sys. Corp., 2019 N.J. Super. Unpub. LEXIS 935, at *2 (App. Div. Apr. 24, 2019) (“[a] summary judgment motion does not present an opportunity for the judge to weigh the evidence or make credibility findings…. The judge’s essential role is to identify disputed questions of fact, assess their materiality, and determine whether a rational factfinder could resolve the disputed facts in the non-moving party’s favor.” (Citation omitted).[1]¹

The New Jersey Law Against Discrimination (LAD)

New Jersey Law Against Discrimination (LAD), specifically N.J.S.A. 10:5-12(a), provides that it shall be an unlawful practice for an employer to discriminate against an employee because of, inter alia, race, creed, color, national origin, ancestry, age, disability, marital status, civil union status, domestic partnership status, sexual orientation, pregnancy, breastfeeding, sex, gender identity or expression, disability, or service in the military, etc.

Enacted in 1945 as the “first state anti-discrimination statute in the nation, the LAD ensures that the ‘civil rights guaranteed by the State Constitution are extended to all its citizens.’” L.W. ex rel. L.G. v. Toms River Regional Schools Bd. of Educ., 189 N.J. 381, 399 ((2007) (citation omitted).

In a 1990 amendment to the LAD, the New Jersey Legislature declared that “the practices of discrimination … threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State…” (N.J.S.A. 10:5-3).

In Lehmann v. Toys R, Us, Inc., 132 N.J. 587 (1993), the New Jersey Supreme Court stated that the “LAD was enacted to protect not only the civil rights of individual aggrieved employees but also to protect the public’s strong interest in a discrimination-free workplace.” Id at 600. Emphasis added). The Court stated that “[f]reedom from discrimination is one of the fundamental principles of our society.” Id.

The goal and purpose of the LAD is “nothing less than the eradication of the “cancer of discrimination.” Fuchilla v. Layman, 109 N.J. 319, 334 (1988)

The LAD is, thus, liberally construed to achieve the State’s goal of eliminating discrimination. N.J.S.A. 10:5-3 (“[t]he Legislature intends that … this act shall be liberally construed in combination with other protections available under the laws of this State.”).

No Direct Evidence Required to Prove Discrimination

As recognized by all courts, most employers and decision makers are sophisticated enough to hide motives they know are illegal. As such, they do not leave a paper-trial or other direct evidence of discriminatory animus, such as recordings, text messages, emails, or writings on the wall. See, for ex., Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005) (“direct evidence of discrimination is often unavailable as there will seldom be eyewitness testimony as to the employer’s mental process.”); Aman v. Cort Furniture Rental Corp., 85 3d 1074, 1082 (3rd Cir. 1996) (“[d]efendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it; and because most employment decisions involve an element of discretion…it is so easy to concoct a plausible reason for not hiring, or firing, or failing to promote….”) (emphasis added); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (“[a]ll courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult …. There will seldom be ‘eyewitness’ testimony as to the employer’s mental processes” (citation omitted); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir.1987) (“we do not require direct proof of … discrimination because it is often unavailable or difficult to find….‘Even an employer who knowingly discriminates… may leave no written records revealing the forbidden motive and may communicate it orally to no one.’”(citation omitted.)

In the absence of direct evidence of discrimination, courts permit a plaintiff to present her case to a jury if she comes up with circumstantial evidence sufficient to demonstrate that her termination was more likely than not motivated by discrimination.

New Jersey courts analyze an indirect-proof LAD claim based on the framework delineated by the United States Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Zive, supra at 447 (2005).

“The McDonnell-Douglas test was formulated ‘to compensate for the fact that direct evidence of intentional discrimination is hard to come by.’” Bergen Commer. Bank v. Sisler, 157 N.J. 188, 209-10 (1999)

As noted by the United States Supreme Court, “[t]he reasons for treating circumstantial and direct evidence alike is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, (2003) (citation omitted) (emphasis added).

Prima Facie Case- First Stage (Step) of McDonnel-Douglas

Under the McDonnell- Douglas burden-shifting framework, if the plaintiff sets forth a prima facie case of discrimination, a presumption is created that the employer unlawfully discriminated against the plaintiff. In a case of age discrimination, the plaintiff set forth a prima facie case of discrimination if she demonstrates that (1) she was in a protected class (over age 18); (2) she was qualified for the position from which she was fired; (3) she suffered an adverse employment decision; and (4) she was replaced by a sufficiently younger person to create an inference of age discrimination, or the termination took place under circumstances that give rise to an inference of unlawful discrimination. Zive, supra at 441.

Establishing a prima facie case in an age discrimination case is not a difficult task, as these cases inherently involve termination of an older person and replacement by someone substantially younger.

Employer’s Articulated Legitimate Non-Discriminatory Reason- Second stage (step) of McDonnel-Douglas

After the employee point out to the judge evidence in satisfaction of her prima facie case, the “burden” then shifts to the defendant to “assert” what is referred to as a “legitimate non-discriminatory reason” for termination. Zive, supra at 448 (citation omitted).

The employer’s “burden” at this stage is very light, as just about any reason for termination that is not on its face discriminatory would suffice, such as lateness, smoking in bathroom, taking too many breaks, etc. In fact, even a false reason would be sufficient at this stage of the test.

Third and Final Stage (Step)- the Pretext Stage

The third and final stage of the McDonnel-Douglas burden shifting framework is called the Pretext stage. Under this stage, in order for plaintiff to get his/her case to the jury, the plaintiff must put out to the court evidence from which a jury could conclude that the employer’s asserted was not the true reason but a pretext for discrimination. That is, an excuse (or ruse) for discrimination.

There are several ways a plaintiff could demonstrate “pretext” for discrimination. For instance, if the employer fires an employee alleging violation of company policy, and employee points out to the judge evidence that she did not violate company’s policy, then, together with the prima facie case, pretext has been demonstrated, and the case must proceed to the jury to determine whether discrimination motivated the termination.

Other ways, include, but not limited to, employer treating an employee differently on account of an impermissible factor, such as age, race, sex, disability, ethnicity, etc. For instance, if the employer terminates a black employee for stealing or being late, or for some other reason which violates company policy, but simply suspends a white employee for the same offense (or vice versa), that is evidence from which a jury could conclude as discrimination. That is, two individuals of different race, sex, ethnicity etc., committing the same offense, but given vastly different treatment, constitutes evidence of discrimination.

Many discrimination cases are dismissed on summary judgment. However, a summary judgment motion could be defeated by seeking comprehensive discovery relating to any alleged policy plaintiff was accused of violating, as well as defendant’s disciplinary actions against other similar situated employees.

At Chatarpaul Law Firm, P.C. we focus mainly on employment discrimination and civil rights violations, including state and federal statutory and constitutional rights violations. Kindly contact us at (201) 222-0123 or via email at info@chatarpaullaw.com if you have any information relevant to this case, or if you are a victim of workplace discrimination, harassment, or other statutory or constitutional law violations.

1. In the Caballero case, the plaintiff was represented by Jay Chatarpaul of the Chatarpaul Law Firm. In that case, a Superior Court dismissed the discrimination claims. On appeal, the Appellate Court agreed with the arguments made in the brief submitted by Chatarpaul Law Firm that the court below improperly decided issues of credibility and engaged in weighing of the evidence on a motion for summary judgment. The Appellate Court reversed the lower court, ordering the case be sent to the jury. ↩︎

However, as New Jersey gives everyone the privilege to exercise and enjoy their civil rights, the state also frowns at whoever infringes on another person’s rights, and anyone found in such activities must be prepared to face justice. The same goes for wrongful termination of job appointment, the state has established some laws to govern the practices of employment and job dismissal. Do you feel cheated or curious to know if you are worthy or satisfied by the laws of New Jersey to sue your boss? Below are the grounds on which you can seek the law for justice on wrongful termination.

1. Discrimination.

The law of the country generally forbid any company or business organization to deprive anyone of their job base on race, religion, place of origin, sex, age(above 40), color, pregnancy, genetic or protected characteristics, but the law also gives grace to employers with a large number of employees. However, New Jersey law is more strict on the aspect of termination due to discrimination relatively compared to other states, the law is set to fight for those that are fired due to military services, health status(HIV/AIDs), blood trait, sexual orientation e.t.c. And the best part of it is that all employer must agree with this law no matter how small the number of their employees, even if it is only one.

The law goes forward to protect anyone who chooses to express their inconveniences on discriminatory and other termination grounds from the retaliation of the company concerned. This implies that any personnel of the company, not only the victims are free to make complaints to the rightful bodies or engage in the investigation of a discriminatory case without having the fear of losing their job or entitlement.

2. Breach of agreement.

Breach of contract is another ground on which an employer can be sued for wrongful termination. These contract which may be oral, written or implied states the business hours, entitlements, absences, length of employment, and cause for which an employee could be fired, all these are written in a handbook in the implied contract. The handbook contains everything the employee needs to know about the job including entitlements and conditions for dismissal. However, handing out a handbook to an employee means that the company is not employing the worker based on employment-at-will, and such a company can be sued on firing an employee for any cause that is different from those written in the handbook.

3. Wages deprivation.

Wages deprivation is punishable under the New Jersey termination laws. The law instructs every employer to pay their employees for all hours spent at work and breaks if given. The law supports that most workers of New Jersey is entitled to a minimum wage of $11.00 per hour as of January 1, 2020, and the employers must pay for overtime for anyone that works more than 40 hours per week. Employees are free to report the employer to the rightful bodies concerned in the state if the employer fails to comply with this payment format.

4. Leave entitlement.

The laws of the states and federal agree that an employee is entitled to a working leave to observe civic obligation and attends to personal issues. The leave is to last for a specified period and it will be an offense for an employer to deny or terminate an employee who is due for any of the leave given below.

Military and jury leave.

In the United States, it is lawful for an employee to seek leave from a company to serve under the military. it is the responsibility of an employer to grant the leave and restore the employee to their formal position within 90 days after the completion of the military service. The law also counts it illegal for a company to fire such employees during the first year of resuming back to work except for a good reason. The unpaid leave may last for five years or three months if the employee is to just attend the United States army school. The same goes for an employee who is selected to be a member of the jury in a law court.

Family and medical leave.

The Family Medical Leave Act (FMLA) gives every employee of the country the right to embark on leave for personal medical purposes, care for a relative with chronic health issues, attend to a newborn baby, or to take care of a person who suffered an injury during the military services. The leave is to last 12 weeks but 26 weeks are allocated for those who seek to take care of their relative that got injured in the armed forces. As for New Jersey, the state is extending the right to medical leave to those that want to take care of their in-laws who are seriously ill, and the employers may likely have to pay them two-thirds of their weekly salaries for six weeks.

Domestic violence leave.

The 20 days of unpaid leave is given to an employee to care for a relative who was involved in domestic violence or assault.

5. Others.

An employee has the right to sue a company that fails to pay their working benefits in due time. The law also grants them the right to report any company that fails to provide a safe environment for their workers and also prevents an employer from firing personnel in retaliation for not involving in illegal activities.

You got employed just over a year ago. You were very excited to be part of the team and something larger than you. From the day of your employment, you have put in your best to make sure you move your company forward.

However, you have been feeling bad for the past week. You were due for a promotion, but your employer doesn’t seem to notice your hard work. All your peers got their promotion, but you got nothing.

You feel underappreciated, even sub-human, that your skill and effort did not get the compensation you deserve.

The above is something a lot of people have experienced at one point or the other. Getting treated badly in the workplace due to your trait which is unrelated to the performance of your job is employment discrimination, and it is a sad experience.

Not only is employment discrimination hell for the employee, it is also bad for the US economy as a whole, and even for the employer. The reason for this is not far-fetched. People who experience workplace discrimination are likely to be less productive, reducing your output for your employer and the United States at large.

Employment discrimination can be based on age, disability, pregnancy, race, color, sex, religion, sexual orientation, natural origin, etc. Federal law and most state laws prohibit any form of discrimination in any aspect of employment including hiring, firing, pay, promotions, job assignments, training, layoff, fringe benefits, and any other condition of employment.

Under employment and labor law, policies that apply to all employees may be illegal if they have a negative effect on a particular class of employees and is not job-related or necessary for the business’ operation.

The following are the various ways you might experience discrimination in the workplace, and why they are illegal.

Employment Discrimination based on color, race, or natural origin

Title VI and VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of color, race, or natural origin. An employer will be in violation of this law if it does any of the following:

• When the employer doesn’t hire an individual based on race, color, or origin.
• Discriminating against an employee concerning his compensation, privileges of employment, terms, or conditions because of his race, color, or origin.
• Segregate employees or job applicants into classes based on race where this segregation is going to deprive the individual of employment opportunities or adversely affect his status as an employee.

Employers are also not allowed to publish notices of employment where they state a preference for persons of a particular race or ethnicity.

Also, companies and organizations that receive Federal financial assistance from the Department of Health and Human Services, cannot on the basis of color, race or origin:

• Deny or modify services it provides to other employees.
• Use administrative methods that subject employees to discrimination.
• Select a location that denies people of a particular race benefits.
• Deny an employee the opportunity to participate in an advisory or planning board.

Employment Discrimination based on sex

The Equal Pay Act of 1963 prevents employers from discriminating on the basis of sex, especially in the payment of wages. In essence, each person should be entitled to equal pay for equal work, regardless of sex. However, sexual discrimination is not limited to wages, other forms include:

• Hiring: When an applicant is qualified but is denied the job role on the basis of sex.
• Firing: When a female employee is let go due to “cutbacks” but her male employees are allowed to remain on the job.
• Promotion: When a female employee who has been with the company for a long time is passed over for a promotion for a male counterpart with less experience.
• Job Classification: When a female employee is denied the right to a title that is typically given to a man with the same job role.
• Benefits: When a female employee is forced to use out of her sick and vacation days for maternity leave, while male employees get long-term disability plans if they sustain an injury.
• Training opportunities: Sending employees of a specific sex for a training that would help them enhance their job performance and productivity.

Employment Discrimination based on Age

The Age Discrimination in Employment Act protects workers above the age of 40 from discrimination. Employers are prohibited from:

• Refusing to hire or discharge an employee based on age.
• Offering different compensation, terms, or conditions of employment.
• Limiting, segregating, or classifying an employee in a way that would reduce his/her employment opportunities.

Employment Discrimination based on Disability

The Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act prevent the discrimination of qualified persons on the basis of disability. This applies to private and government positions. Examples of this type of employment discrimination include:

• Denying a benefit, aid, or service made available to other employees.
• Denying the employee of the opportunity to be a member of an advisory or planning board.
• Imposing eligibility criteria that automatically screens out people with disability, except where it is vital for the execution of that job role.

Employment Discrimination based on Religion

The Civil Rights Act of 1964 prohibits discrimination in firing, hiring, and other employment terms based on an employee’s belief or religious affiliation. The Act requires a company to make accommodation for the religious belief of an employee unless it would cause undue hardship for the company.

Employer Retaliation

Employees are protected from retaliation by their employer for filing a lawsuit or complaint against their employer. By law, when employees complain of discrimination, employers are prohibited from demoting, harassing, altering benefits, refusing promotion, forcing an unpaid leave of absence, terminating, or changing job assignment in retaliation.

Employees who suffer retaliation as a result of their complaint of discrimination may be entitled to additional damages.

Filing a lawsuit

Before an employee can file a lawsuit, he/she has to register a formal complaint with the U.S Equal Employment Opportunity Commission (EEOC).

The organization determines if there is a way to resolve the dispute between the employee and employer. If this fails, it could either bring an action on the employee’s behalf or give the employee a “right to sue” letter.

Make sure that you file charges within 300 days of the discriminatory act. Also, before you begin the lawsuit, get in touch with an employment discrimination lawyer.

While direct evidence of discrimination is preferred, a plaintiff is not required to come forward with direct evidence of discrimination. All courts recognizes that employers are sophisticated enough to hide motives they know are illegal. They do not leave a paper-trial or other direct evidence of discrimination, and there will seldom be eyewitness testimony as to the employer’s state of mind, no written records revealing the forbidden motive and may communicate it orally to no one.

In the absence of direct evidence of discrimination, courts permit a plaintiff to present her case to a jury if she comes up with circumstantial evidence sufficient to demonstrate that her termination was more likely than not motivated by discrimination.

New Jersey courts analyze an LAD claim based on the three-part burden shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. Under the McDonnell Douglas burden-shifting framework, if the plaintiff sets forth aprima facie case of discrimination, a presumption is created that the employer unlawfully discriminated against the plaintiff. The plaintiff sets forth a prima facie case of AGE discrimination if she demonstrates that (1) she was in a protected class; (2) she was qualified for the position from which she was fired; and (3) she suffered an adverse employment decision; (4) she was replaced by a sufficiently younger person to create an inference of age discrimination, or the termination took place under circumstances that give rise to an inference of unlawful discrimination. After an employee has established a prima facie case, a presumption is created that the employer unlawfully discriminated against the employee.

After the plaintiff establishes prima facie case, the burden then shifts to the employer to articulate with admissible evidence a “legitimate non-discriminatory reason for the employer’s action. To accomplish this, the employer must clearly set forth the reasons for the plaintiff’s rejection which would support a jury finding that unlawful discrimination was not the cause of the adverse employment action.

After the employer demonstrates a legitimate non-discriminatory reason for termination, the burden then shifts back to the plaintiff to come forward with evidence demonstrating either (1) that defendants‟ proffered reason for terminating the plaintiff was unworthy of credence, or (2) discriminatory animus more likely than not motivated plaintiff’s termination.

A plaintiff may demonstrate discrimination by producing indirect evidence to demonstrate that the employers’ reasons to terminate/discipline employer’s was either a post hoc fabrication or otherwise did not actually motivate the employment action. That is, the reasons provided by the employer was a pretext. To do so, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reasons for termination/discipline that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted reasons provided.

Alternatively, a plaintiff may come forward with sufficient evidence from which a jury could reasonably conclude that a discriminatory factor more likely than not was a motivating or determinative cause of the adverse employment decision (e.g., by showing that the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated other, similarly situated persons not of his protected class more favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons).Further, a plaintiff need not prove that discrimination was the ONLY factor, or the sole or exclusive factor in the decision to fire her, but A factor.

Conclusion

Statistically, most plaintiffs win their discrimination cases in state courts. However, some of these cases do not even make it to a jury, and are dismissed on summary judgment. Age discrimination cases are probably more difficult than any other types of discrimination cases, as the employer can easily come forward with legitimate non-discriminatory reason for termination. However, armed with sufficient evidence that the employer may not have acted in accordance with advanced non-discriminatory reason with other similarly situated younger employees, or prior age- based discriminatory treatment of other employees, the chance of defeating a summary judgment motion will be much greater.

Many employees who are unjustly harassed, disciplined or fired do not come to court with any direct evidence of discrimination. Often times, the case boils down to “he say, she say.” But a discriminatory comment captured on a smart phone could be the decisive factor in proving your case. A comment about a person’s age, race, sex, gender, pregnancy, sexual orientation, disability, ethnicity, religion, or comments relating to stereotypes, could be very helpful in proving discriminatory intent. If it’s a sexual harassment case, you can record the harasser making inappropriate sexual remarks or statements of other employees admitting that he/she was sexually harassed by the same person. You can record meetings, interviews, one-and one-counseling, performance evaluations, etc. (Other digital evidence of discrimination may include photographs, video recordings, emails, Facebook posts, and other electronic messages).

In New Jersey, recording workplace conversation is legal so long as you are a party to the conversation. You need not disclose to anyone that you are recording the conversation. You can tape record a conversation between you and your employer or with co-workers without their knowledge. However, you cannot tape record a conversation between your employer or co-workers unless you are participating in the conversation.

The following should be taken into consideration.

1. You may be terminated for recording conversations. While recording a conversation in New Jersey is legal so long as you are a party to the conversation, your employer may have a policy prohibiting recording workplace conversations. Thus, while you may use recordings in your discrimination case, you risk being fired by your employer.
2. The recordings must not be altered or deleted in any way. No part of the recordings should be deleted, edited or altered in any way. If you delete or edit any part of the recordings, the recordings will not be admissible in court. The entire recordings must be left unaltered.
3. Be careful what you say. Since you are recording conversations in which you are a party, you should be careful what you say as the recordings may also hurt your case.

1. Complaining about discrimination
2. Requesting accommodation under the Americans with Disability Act (ADA) or similar state provision
3. Filing a discrimination charge with the EEOC or state civil rights division
4. Participating in a discrimination proceeding on behalf of yourself or another person
5. Opposing discrimination against you or another person.

That is, an employer may not fire, demote, harass, or otherwise retaliate against you in any form, including giving a bad (adverse) employment evaluation. Similarly, an employer is prohibited from coercion, intimidation, threat, harassment, or interference in an employee’s exercise of her/his anti-discrimination rights or encouragement of someone else’s exercise of her/his rights.