Retaliation for Victimless Discrimination: New Jersey Dramatically Expands the Scope of Protected Conduct

2015Articles Seton Hall Legislative Journal

Catherine A. Savio authored the Thomson Reuters Seton Hall Legislative Journal article, "Retaliation for Victimless Discrimination: New Jersey Dramatically Expands the Scope of Protected Conduct." 

The recent New Jersey Supreme Court case, Battaglia v. United Parcel Service, Inc., effectively broadened protection against retaliation afforded to employees under New Jersey's Law Against Discrimination (“LAD”). This judiciaryaction is consistent with a predictable national trend, stemming from recent Supreme Court decisions interpreting employer retaliation liability based upon the “purpose” of the statute rather than the explicit language contained in the statute. The Supreme Court's interpretation increases the protection afforded to employees by eliminating potential loopholes for employer liability that result from a more textualist reading. This new standard, however, also increases the risk of frivolous claims resulting in harm to judicial economy and creates issues of horizontal equity due to the malleability of a standard formulated based upon the purpose and spirit of a statute rather than its language. In order to address these problems while effectively protecting the rights of employees, the New Jersey Supreme Court needs to clarify the good faith reasonable belief standard articulated in Battaglia. The Battaglia court held that as long as an employee can demonstrate a good-faith belief that the alleged conduct violated the LAD or that the conduct was simply inconsistent with the objectives of the LAD, he or she is not required to show actual discrimination against an identifiable victim.

This Note examines the good faith reasonable standard's evolution and application in federal courts, as well as its recent articulation in New Jersey state courts. While this Note approves of the protection afforded by such a standard in retaliation cases, it proposes a clarification of its application for New Jersey courts.

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Reprinted with permission from the Seton Hall Legislative Journal. (c) 2015 Thomson Reuters. Further duplication without permission is prohibited. All rights reserved.