Court Sets High Standard For NJLAD Retaliation Claims

Based on the New Jersey Supreme Court's 2007 decision in Carmona v. Resorts International Hotel, Inc., 189 N.J. 354 (2007), an unreasonable, frivolous, bad-faith or unfounded complaint cannot satisfy the statutory prerequisite necessary to establish liability for retaliation under the New Jersey Law Against Discrimination (LAD).  In the specific case, an employee of Resorts International alleged that his employer retaliated against him after he complained about unfair treatment, which he alleged was a violation of LAD.  The trial court found in favor of the plaintiff, but Resorts appealed and the Appellate Division reversed the lower court.  The plaintiff appealed the Appellate Division's reversal to the NJ Supreme Court, which identified two issues: 1) whether the employee’s complaint that triggers an alleged retaliation claim must be made in good faith and on an reasonable basis; and 2) whether an investigative report prepared by the employer, which the employer claims provided an independent basis for the employee’s discharge, should have been admitted into evidence.

The Court reiterated that, in a case alleging retaliation under the LAD, the plaintiff bears the burden of proving that his or her original complaint was made reasonably and in good faith.  The LAD cannot protect someone who files a complaint solely in anticipation of an adverse employment action by the employer.  The Court reasoned that the LAD was and is intended to serve as a shield to protect employees from the wrongful acts of their employers, and not as a sword to be wielded by a savvy employee against his employer.

The Court also ruled that when an employer defends against a claim alleging that an employee’s discharge was the product of retaliation, an investigative report prepared by the employer that purports to demonstrate a non-retaliatory reason for the employee’s termination is a non-hearsay statement and, therefore, is admissible as evidence in court.  The trial court erred in refusing to allow Resorts to introduce its investigative report.

Practice Pointer: Consistent documentation of employee performance and misconduct is essential for the employer because it creates a defense to a retaliation claim if the employer can demonstrate that the claim was not brought in good faith or in an attempt to avoid an adverse employment action.

For additional information on this topic, please contact Douglas S. Zucker at or Kathryn V. Hatfield at