In New Jersey an employee can prove they were the victim of workplace discrimination in violation of New Jersey’s Law Against Discrimination (LAD) or unlawful whistleblowing retaliation in violation of New Jersey’s Conscientious Employee Protection Act (CEPA) by presenting evidence that an equal or subordinate coworker influenced the employer to fire [or use another form of adverse employment action] him/her.  Indeed, the recent updated version of the New Jersey Model Civil Jury Charge recognizes that “unlawful employment discrimination … can be predicated on claims that a non­-decisionmaker’s discriminatory views impermissibly influenced the decisionmaker to take an adverse employment action against an employee.” (emphasis added) quoting Meade v. Twp. of Livingston, 249 N.J. 310, 336 (2021).


Our New Jersey Supreme Court first addressed this issue of indirect influence causing the claimed unlawful workplace discrimination or retaliation in its 1998 decision in Spencer v. Bristol-Meyers Squibb Co., 156 N.J. 455 (1998). In Spencer, the Court affirmed an employee’s introduction of her supervisor’s statement into evidence to show that an outside individual’s racial animus influenced her employer’s decision not to hire her. Id. at 456-58, 466. The employee alleged that she was denied the position because — according to what the company’s Director of Human Resources had allegedly told her — a person who was “very influential in the company” had expressed concern that the plaintiff would be his daughter’s supervisor if hired because he “would be a little concerned about the idea of having a black female of your age as her role model.” Id. at 457-58. Although the Court’s focus was on the admissibility of the statement attributed to the director under the Rules of Evidence, it is significant for our discussion because the Court affirmed the admission of the statement, which was proffered to show that the outside individual’s racial animus influenced the decision not to hire the employee Id. at 466.


In its 2013 decision in Battaglia v. United Parcel Serv., Inc., 214 N.J. 518 (2013), our State Supreme Court concluded that evidence of indirect influence could support a CEPA claim. Battaglia involved an employee who was demoted after complaining about his supervisor’s misuse of credit cards and inappropriate remarks about women in the workplace. Following his complaint, the employee was reprimanded for poor performance, placed on paid leave, and demoted. The employee brought a claim against his employer alleging that the employer violated CEPA and the LAD. In its decision the Court that when determining whether a plaintiff had established the necessary causal link between the employee’s protected conduct and the employer’s adverse employment action a jury could find that the employee had demonstrated the requisite causal link indirectly by showing proof that a supervisor who did not have the authority to subject the complaining employee  to a  retaliatory employment action but who prepared a biased evaluation because of the employee’s CEPA-protected complaints, might have sufficiently tainted the view of the actual decision maker to support relief.” Id. at 559.


More recently in Meade v. Twp. of Livingston, 249 N.J. 310 (2021), the New Jersey Supreme Court once again affirmed the validity of using indirect evidence to causally establish a violation of a statutory employment law, specifically, sex discrimination under the LAD.  There, the Plaintiff Michele Meade who had served as the Township Manager for Livingston Township for eleven years, from 2005 until her termination in 2016, claimed she was fired by the Township Council “to appease the sexist male Police Chief” whose employment she had previously thought to terminate. In its opinion reversing the grant of summary judgment to the Township defendants, the Court reminded that Meade was not expected to prove that gender was the “sole or exclusive” factor in her termination at this stage; rather she needed only to show by a preponderance of the evidence that [her gender] made a difference. Id. at 330.  The Court found a reasonable jury could determine that the Township Council fired Meade because it believed that she was unable to control the Police Chief as a result of her gender in violation of the LAD. Id. And following its prior reasoning in Spencer and Battaglia, the Court made clear that, “actions taken to accommodate discriminatory views can support liability to the same extent as actions taken based on personally held discriminatory views.” Id at 336.   Accordingly, the Court concluded Meade had presented sufficient evidence to create a genuine issue of material fact sufficient for a trial on the merits. Id. at 332.


If you believe you are or have been a victim of unlawful workplace discrimination or whistleblowing retaliation you are urged to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to protecting the rights of its employees.

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