On February 18, 2020 Governor Phil Murphy announced new legislation aimed at amending New Jersey's Law Against Discrimination ("LAD") to set a new standard for businesses in New Jersey. The New Jersey Legislature has been quick to pass new laws aimed at providing greater protection to employees, and this proposal may too find itself on the fast track to becoming the law of the land in New Jersey. This provides all the more reason employers should be up to date on the proposed changes to the already expansive LAD. The major changes contemplated by the new law are:

• Lengthened Statute of Limitations. The new proposal lengthens the statute of limitations to file a LAD claim in court from 2 years, to 3 years, and lengthens the period to file a complaint with the Division on Civil Rights from 180 days to 1 year. The amendment to the statute of limitations is expected to have the greater impact of the two changes. Because LAD does not have an administrative exhaustion requirement like some other state statutes, individuals may proceed directly to court, without having to first go to the Division on Civil Rights. Accordingly extending the time period to file a complaint with the Division is not overly significant. 
• Unpaid Interns and Domestic Workers Covered. The proposal also expressly amends LAD to cover unpaid interns and domestic workers. However, the proposal provides that people who employ people in their home (e.g., maid, nanny, gardener) do not need to comply with all the requirements applicable to other "employers."
• Clarified Definition of "Hostile Work Environment." The proposal also seeks to clarify the standard for a prospective plaintiff to demonstrate that their work environment was sufficiently "hostile" to raise a claim under LAD. Unlike New York, which recently overturned precedent to lower the bar to bring a hostile work environment claim (which our Firm discusses here), the New Jersey amendment takes the tact that it is codifying the standard to be consistent with prior precedent from the New Jersey Supreme Court (and Justice Ginsburg’s concurrence in Harris v. Forklift Systems, 510 U.S. 17, 26 (1993)). In doing so, the proposal expressly disapproves of several state and federal cases, identifying them by name and citation, which found that a single instance of inappropriate conduct was insufficient for a work environment to be "severe and pervasive." The proposal hammers home this point by stating that in determining whether harassing conduct was sufficiently severe or pervasive, "a single incident of harassing conduct may be sufficiently severe to create a triable issue of fact regarding the existence of an intimidating, hostile or offensive work environment."
• Mandatory Policy Implementation and Training. The New Jersey proposal seeks to require that all employers enact (and enforce) anti-harassment and anti-discrimination policies. As part of these mandatory policies, employers are required to provide anti-harassment/discrimination training to all new employees within 90 days of hire, and to provide refresher training to all employees every two years thereafter. The proposal will also require the Division of Civil Rights to publish a "model" policy that employers can utilize in order to ensure their own compliance with the law. This change is similar to the recently enacted law in New York requiring mandatory policies and training. 

Large Employers to Provide Data to State Government. One provision of the proposal that should get Garden State employers' attention is a mandatory reporting obligation. The proposal requires all employers with fifty or more employees (whether or not those employees are employed in New Jersey) to provide data to the Division of Civil Rights related complaints received of discrimination, harassment, and retaliation. Covered employers will be required to collect and annually report complaints received regarding unlawful workplace discrimination, including the total number of complaints filed, the number of complaints that were substantiated and unsubstantiated and the number of complaints pending. A violation of the reporting requirement does not give rise to a private right of action.  

Although the Governor's proposal has received a warm reception from the rest of the State government, it still needs to go through the legislative process and is subject to change. When/if the bill reaches its final form, and is set to become enacted, we will provide another update.