On July 17, 2013, the Supreme Court of New Jersey expanded the state’s already broad Law Against Discrimination (LAD), holding that an employee’s complaints about inappropriate workplace conduct need not identify any specific victim of discrimination or harassment to constitute protected activity. Rather, the court held, complaints about derogatory comments concerning a protected class can support a claim for retaliation under the LAD, regardless of whether those comments were made to or heard by members of the protected class.
In the case, Battaglia v. United Parcel Service, Inc., A-86/87-11, 2013 WL 3716939 (N.J. July 17, 2013), the plaintiff brought suit against his employer, complaining that he was demoted for, among other reasons, complaining about vulgar and misogynistic comments made by his supervisor. Specifically, the plaintiff alleged that his supervisor regularly referred to female employees using gender-based slurs, discussed pornographic websites, commented on the size of female employees’ breasts, and expressed his desire to have sex with a female coworker. The plaintiff complained about the conduct directly to his supervisor and also in a letter to human resources, written anonymously but eventually traced back to him. However, the plaintiff admitted that his supervisor’s comments were never made to or in the presence of any female employees but, rather, only in the presence of other men.
After a four-week trial, a jury returned a verdict in the plaintiff’s favor on his LAD claim, finding that the plaintiff was demoted in retaliation for complaining about his supervisor’s conduct. On appeal, the New Jersey Superior Court, Appellate Division, reversed, holding that because there was no evidence that any of the supervisor’s derogatory comments were made to or heard by women, there was no discrimination or harassment under the LAD. Because the comments did not constitute discrimination or harassment, the court held, the plaintiff’s complaints about those comments did not constitute protected activity and thus could not support a claim for retaliation.
On appeal, the New Jersey Supreme Court reversed, holding that the plaintiff’s complaints constituted protected activity notwithstanding the fact that no women were subjected to his supervisor’s derogatory comments. In reaching its decision, the Supreme Court noted that the LAD has the “broad remedial purpose” of “eradicat[ing] the cancer of discrimination.” Accordingly, the court held, the LAD’s protection extends beyond those who “voice complaints about directly demonstrable acts of discrimination.” Because the comments used were “particularly vile, demeaning, and offensive,” and came from a supervisor rather than a low-level employee, the plaintiff’s complaints about those comments were protected under the LAD. Critical to the Supreme Court’s decision was its observation that “the LAD was enacted to protect not only the civil rights of individual[s] … but also to protect the public’s strong interest in a discrimination-free workplace.” Accordingly, the court held, “we would ill serve those important purposes were we to demand that one who voices complaints … also prove that there is a separate, identifiable victim of actual discrimination.”
While the New Jersey Supreme Court specifically noted that the comments complained of in Battaglia were made by a supervisor, its decision leaves open the question of whether a complaint about similar comments made by a low-level employee would constitute protected activity. Nonetheless, New Jersey employers should treat complaints about derogatory workplace comments as protected activity, even when those comments are not made to or heard by members of a protected class, and take appropriate measures to investigate the complaint allegations and ensure that no retaliation occurs.