In 1945 New Jersey became the first state since the Reconstruction era to pass comprehensive anti-discrimination legislation with its enactment of the Law Against Discrimination, or as it is more commonly called, the “LAD.” In enacting the LAD, the NJ Legislature declared “that practices of discrimination against any of its inhabitants…are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3. While the LAD expressly states that “inhabitants” or residents of New Jersey are protected from discrimination, no mention is made as to whether its protections extend to victims of discrimination who reside or work outside of New Jersey. Fortunately, in Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (App. Div. 2019) the New Jersey Superior Court, Appellate Division concluded the LAD could extend in appropriate circumstances to plaintiffs who reside or work outside of New Jersey.
In Calabotta, the plaintiff, an Illinois resident, sued his New Jersey-based former employer, alleging that it wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois. Specifically, plaintiff Calabotta claimed that the company engaged in “associational” discrimination against him in violation of LAD based on the fact that his wife was then terminally ill with cancer. As an initial matter the Appellate Division in Calabotta found there to be a conflict between New Jersey law and Illinois law when it came to recognizing “associational” discrimination as a viable cause of action. It was recognized in New Jersey. O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249, 255 (App. Div. 1998) (where a plaintiff is wrongfully discharged for associating with a member of a protected group under the LAD, it is the functional equivalent of being a member of that same protected group). By contrast, Illinois law had not recognized a cause of action for associational discrimination.
In deciding whether LAD covered plaintiff Calabotta’s failure to promote and wrongful discharge claims, the Court decided the factors spelled out in the Restatement (Second) of Conflicts of Laws (the “Second Restatement”) were applicable:
- the needs of the interstate and international systems,
- the relevant policies of the forum,
- the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
- the protection of justified expectations,
- the basic policies underlying the particular field of law,
- certainty, predictability, and uniformity of result,
- ease in the determination and application of the law to be applied,
- the place where the injury occurred,
- the place where the conduct causing the injury occurred,
- the domicile, residence, nationality, place of incorporation and place of business of the parties, and
- the place where the relationship, if any, between the parties is centered.
The appellate court then examined the LAD’s text and legislative history and found no expression of legislative intent to limit the statute’s protections to job applicants who live in New Jersey or to those employees who perform all of their employment functions in New Jersey. However, the Court further concluded the legislature did not make clear whether the LAD applied to cases where choice-of-law issues arose because of conflicting laws of other states. Consequently, after weighing the various balancing factors contained in the Second Restatement, the Court concluded New Jersey’s LAD must govern the failure-to-promote claim, finding that most of the Second Restatement factors were heavily influenced by the fact that the new position sought by the plaintiff and other potential applicants was going to be located in New Jersey, where the defendant company was based.
When it came to deciding plaintiff Calabotta’s wrongful discharge claim, the appellate court was hesitant to rule because the state with the most significant relationship to the wrongful discharge claim was not readily apparent. Rather than attempt to resolve the discrete choice-of-law assessment on an incomplete and disputed record, the court remanded the issue to the trial court for a fuller development of the facts. In doing so, the Court noted that it would be legally permissible for New Jersey law to apply to the plaintiff’s failure-to-promote claim and for Illinois law to apply to his wrongful discharge claim. Conversely, the application of New Jersey law to both claims remained a conceivable option depending on the development of the record affecting the Second Restatement factors
The attorneys at Mashel Law are well experienced in effectively handling LAD claims for persons residing in or outside of New Jersey. Call the attorneys at Mashel Law at (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.