An Overview of Your Rights as a NJ Employee
Understanding the New Jersey Law Against Discrimination
Types of Discrimination Prohibited by the NJLAD
What to Do If You’ve Experienced Discrimination
The New Jersey Law Against Discrimination (NJLAD) is among the most robust and expansive anti-discrimination laws in the U.S., providing many protections that go above and beyond federal employment laws. We’ve created this ebook to serve as a clear and concise guide to help readers understand, identify, and appropriately address employment discrimination in New Jersey workplaces. If you think you may have been subject to illegal discrimination at your place of work, this guide will help you understand your rights and how to enforce them.
The NJLAD is New Jersey’s primary anti-discrimination statute. It’s been protecting New Jersey workers from discriminatory practices in employment, housing, and public accommodation since 1945—well before the U.S. Congress passed the Civil Rights Act of 1964. It’s been amended many times since its passage, expanding, clarifying, and strengthening its provisions.
Not all forms of discrimination are illegal. For example, if an employer doesn’t like your politics, the sound of your voice, or the colors you wear, it’s unlikely that they would be violating the law for refusing to hire you for these reasons. Like the Civil Rights Act, the NJLAD has established several “protected characteristics.” Discrimination against employees based on these protected characteristics is prohibited. Under the NJLAD, these include the following:
Discrimination based on sex prohibits more than simply treating members of one sex less favorably across the board; it also includes discrimination based on pregnancy or breastfeeding as well as sexual harassment. Creed includes cultural beliefs or practices that are not necessarily associated with a religion.
It’s also worth noting that if an employee or applicant is discriminated against because they are merely perceived as possessing a protected characteristic such as homosexuality, disability, or a particular racial or ethnic background, this could also give rise to legal liability; it makes no difference if the employee is actually straight, able-bodied, or white.
It’s important to understand that not all unfair treatment is illegal discrimination. There are many ways employers might treat their employees unfairly that are not legally actionable. As noted above, discrimination must be based on a protected characteristic to be considered illegal. Illegal discrimination falls into three basic categories:
Disparate treatment describes intentional acts of discrimination. If an employer knowingly treats an employee or applicant less favorably because of a protected characteristic, it engages in disparate treatment. Here are some examples of what illegal disparate treatment might look like:
While these examples illustrate discrimination against people who are in a minority or generally disadvantaged group, as is most common, in many cases, it is also illegal for employers to discriminate against members of majority or advantaged groups. For example, if an employer routinely refused to hire or promote male, white, straight, or Christian employees because of these traits, they would likely still be violating the NJLAD.
Disparate impact discrimination is not necessarily intentional. It involves policies or practices that appear neutral at a surface level but actually have a disproportionately negative impact on people with certain protected characteristics. Below are some examples of how this could occur:
Retaliation occurs when an employer takes an adverse action against an employee because they have engaged in some kind of legally protected activity, such as filing a discrimination complaint with human resources, participating in the investigation of a complaint, or filing a legal claim against the employer. These are a few ways retaliation could appear:
The law recognizes two basic forms of harassment: quid pro quo and hostile work environment.
Quid pro quo harassment is a type of sexual harassment where a person in authority requests or demands sexual behavior from an employee or applicant in exchange for some benefit or in order to avoid an adverse employment action. A basic example would be a supervisor promising a promotion or raise in exchange for a date. While straightforward, this type of harassment can also be difficult to prove as it often occurs in unobserved, undocumented conversations. If this is the case, consult with an experienced sexual harassment attorney for guidance on compiling evidence.
A hostile work environment can be created by managers, supervisors, coworkers, and even vendors or customers. This occurs when pervasive and severe discriminatory conduct creates a work environment that is intimidating, hostile, or offensive to employees possessing certain protected characteristics. For example, this may take the form of
An occasional slur, inappropriate joke, or passing of a distasteful image is not sufficient to create a hostile work environment under the law. The situation must be so severe and pervasive that it would cause a reasonable person with the relevant protected characteristic to perceive that the work environment as abusive.
If you believe you are experiencing or have experienced illegal discrimination, it’s important to take action promptly. This helps ensure evidence is preserved and that you’re able to meet important filing deadlines. The NJLAD gives employees up to two years after discriminatory action takes place to file suit in New Jersey court. If the behavior is ongoing, this can extend the deadline, but it’s best to get started as soon as you suspect you have a claim. Take these steps as soon as possible:
Start documenting everything you can as soon as possible. Gather all the evidence you can about the following:
Save any emails, texts, voicemails, or other communications that contain information related to these facts. If appropriate, take photos, video, or audio recordings documenting discriminatory incidents, but consult with your attorney about potential legal issues if you’re considering recording people without their knowledge or consent.
Even if you lack faith in your company’s internal systems, it’s vital that you follow your human resources department’s procedures for reporting discriminatory conduct. This creates a formal record of your allegations and gives the company an opportunity to address the issue. This formal record also protects you in case your employer decides to retaliate against you, creating a clear paper trail that can help to show that any adverse employment action could be retaliatory in nature.
The New Jersey Division on Civil Rights (DCR) is the state agency charged with enforcing the NJLAD. The DCR’s Investigations Unit is responsible for investigating complaints. Investigators review relevant documents, interview witnesses, and gather evidence to determine whether there is probable cause to believe violations have occurred. It is not required, however, that you file a claim with the DCR before filing a lawsuit under the NJLAD.
To file a discrimination complaint with the DCR, you must submit an intake form within 180 days of the alleged violation, either by using the agency’s online portal or by calling its toll-free number: (833) NJDCR4U (833-653-2748). After you submit the intake form, a DCR investigator will call you to conduct an intake interview over the phone and verify that the DCR has jurisdiction over your complaint. If so, the DCR will provide a verified complaint form for you to sign. If it appears that both state and federal laws may have been violated, the DCR and federal Equal Employment Opportunity Commission (EEOC) may work together to investigate the claim.
You also have the option of filing a lawsuit in the civil division of the New Jersey Superior Court. This route allows you two years to file the claim instead of the 180 days allowed by the DCR. Additionally, the Superior Court allows more extensive discovery than the DCR, provides the option for a jury trial, and can consider a wider variety of remedies.
Proving a discrimination claim is a complex undertaking. While there is no cost associated with filing a complaint with the DCR, they are not able to give you a lot of advice or support. Whether you file a DCR complaint, a lawsuit, or both, an experienced employment attorney can help ensure it’s done correctly and provide expert guidance to give your case has the best possible chance of success. They can also help you determine the best route for pursuing your claim.
The attorneys at the Mark & Kleinfeldt Law Firm are experienced at representing clients who have faced various forms of discrimination at work. We’ve recovered millions for our clients and can help you receive the financial compensation you deserve. Reach out to schedule a free consultation, and we’ll help you figure out your next steps. Call us at 908-460-8996, or fill out the contact form at the bottom of our employment law page. We’re here to help.