What is Retaliation?

The New Jersey Law Against Discrimination (NJLAD) protects employees against retaliatory action brought by employers.

The NJLAD only applies, however, in instances where the retaliation is for an employee’s “protected activity.” The law provides two main categories of activities that are protected: opposing illegal practices or acts, such as discrimination, and filing complaints or assisting in the proceedings related to illegal practices or acts. In other words, employees who either oppose discrimination or harassment in the workplace or participate in proceedings or investigations related to discrimination or harassment in the workplace are protected from retaliation by the NJLAD.

In order to prove a retaliation claim under the NJLAD, an employee must be able to prove three elements by a preponderance of the evidence. This means that the employee must be able to demonstrate to the judge or jury that the alleged retaliation more likely occurred than not. Because it may often be difficult to show direct proof of retaliation, however, employees can use circumstantial evidence, such as the timing of events, to support the elements necessary to prove a retaliation claim.

1. The first element of a retaliation claim is engagement in a protected activity. When establishing that an employee was engaged in a protected activity, such as reporting discrimination, the plaintiff does not have to prove that discrimination actually occurred. Rather, it is sufficient simply to prove that the employee had a good faith and reasonable belief that unlawful discrimination took place.
2. Next, the plaintiff must demonstrate that the employer took retaliatory action either during or after the protected activity took place. To establish that the employer subjected the employee to retaliation, the employee must prove that he or she suffered an adverse employment action. Adverse employment actions can include many things, including termination, demotion, denial of a promotion, or disciplinary action. In the absence of such adverse actions, the employee may still be able to prove retaliation by showing that he or she was subjected to a pattern of retaliatory behavior.
3. Finally, the employee must be able to show that there is a link between the employee’s protected activity and the employer’s retaliatory action. This means that the employee must prove to the judge or jury that employer was motivated to retaliate against the employee because the employee engaged in a protected activity. The employee does not have to show that the protected activity was the sole reason for the employer’s actions, but only that the protected activity motivated the employer in some way.

When hearing a case based on illegal retaliation, a judge or jury will be given the important task of weighing both sides of the story. As fact-finders, judges and juries must evaluate the credibility of both the plaintiff and defendant and determine whether illegal retaliation actually occurred. If the judge or jury determines that the plaintiff was, in fact, the victim of retaliation for engaging in a protected act, then they must decide how the employee should be vindicated. In most cases, the employee is entitled to monetary damages for lost wages that resulted from the retaliation, but in certain circumstances, emotional distress and punitive damages can be awarded as well.

In general, the NJLAD provides broad protections against unlawful workplace retaliation. There may be a limited time, however, in which you can bring a claim under the NJLAD or any other applicable laws. It is crucial, therefore, to seek the advice of an experienced employment attorney as soon as possible in order to preserve your legal rights if you believe that you have become the victim of unlawful retaliation.