Tag Archives: discrimination

Recent case illustrates proper analysis under New Jersey Law Against Discrimination

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This week, the Superior Court of New Jersey, Appellate Division, decided a case involving a claim under the New Jersey Law Against Discrimination (NJLAD) and outlined the burdens of proof necessary to make a proper case under the NJLAD.

Factual background

According to the decision, the employee worked for her employer for about 24 years, until her employment was terminated. She had supervisory responsibility over the production of commercial print advertisements.

Her performance was satisfactory until 2003, when she received 2 written warnings for her failure to complete certain printing jobs, for mailing a package to the wrong location, and for working the wrong job for 2 shifts.

In September of 2003, the employee met with her department and human resources managers about her performance problems. A memo from the employee’s file summarizing the discussion reflected several complaints about her job performance. Her department manager told her to improve her performance in the areas they discussed and stated that her failure to improve could result in termination of her employment.

In October 2003, the employee supervised a project that was sent to press without having been completed, costing the employer over $200,000 to re-run the project. The following month, her employer fired her, stating in a written notice that her poor performance was the reason for the termination.

Two years later, the employee sued her former employer under the NJLAD, claiming gender and sexual orientation discrimination and breach of contract. Losing at the lower court level, she filed this appeal.

Framework for analysis

The appellate court determined that the employee’s claims had no merit. The court outlined the proper framework for analyzing NJLAD claims: 1) The plaintiff must present enough evidence to establish a prima facie case of illegal discrimination; 2) The defendant must present evidence to establish a legitimate, non-discriminatory reason for the adverse employment action; 3) If #2 is established, the plaintiff must prove that the defendant’s reasons are a pretext for illegal discrimination.

Assuming that the employee in this case presented a prima facie case under #1, above, the defendant-employer successfully met its burden under #2, above, by establishing that it fired the employee because of her poor performance.

To meet the burden of #3, above, the employee needed to show not only that the employer’s reason for firing her was false, but also that the employer’s motivation in firing her was, more likely than not, discriminatory. Her evidence of discriminatory intent included the assertion that ever since she refused to take a severance package offered to her in 2002, the employer was out to get her. However, the court pointed out that if the employer had wanted to let her go in 2002, they could have done so. And, the company later gave her an opportunity to improve her declining performance.

As further evidence, the employee asserted that another employee who worked on the costly print job error was not disciplined. The court declared that an employer’s decision to discipline only one employee does not create a cause of action for discrimination under the NJLAD. Overall responsibility for the print-job error admittedly rested with the employee, who was unable to present facts to show discriminatory intent based on gender or sexual orientation.

Brunner v. Vertis, Inc., et al., Docket No. A-0036-07T1 (Sup Ct NJ App Div 2008).

Commentary

This case illustrates the importance for employers of documenting complaints and meetings about employee performance and of placing that documentation in the employee file. In this case, it looks like the employer’s good record-keeping was a saving grace for them in providing evidence countering the employee’s claims.

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How the lack of fair pay affects us all

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Are you paid fairly?

A 2007 U.S. Supreme Court case that you may have heard of, Ledbetter v. Goodyear, says that a person claiming pay discrimination must file their EEOC discrimination claim within 180 days after receiving their first discriminatory paycheck. The case has been widely criticized – see, for example: The American Prospect and Pundit Mom.

The issue of fair pay arose in the current presidential campaign – see Huffington Post and Newsday. Criticism of McCain’s position can be found at MOMocrats and Jezebel. A bill was introduced to remedy the problem the U.S. Supreme Court created: HR 2831. The bill’s lack of progress was reported on in the Washington Post. And there was a speech by Lily Ledbetter herself at the Democratic National Convention.

Now there is an interesting installment from the academic world (also blogged about at Women’s Studies Liblog). A recent article in the Harvard Civil Rights-Civil Liberties Law Review by Tristin K. Green entitled, “Insular Individualism: Employment Discrimination Law After Ledbetter v. Goodyear,” explores the idea that the Ledbetter case is part of “the belief that discrimination can be reduced to the action of an individual decisionmaker (or group of decisionmakers) isolated from the work environment and the employer.”

Prof. Green’s argument is that the Ledbetter case is leading a trend toward stiffer evidentiary requirements for employees in employment discrimination cases. There will be less evidence that employees are allowed to use to show discrimination, and vicarious liability for employers will be whittled away.

Part of the larger point of the article is that the attempted Congressional remedy of HR 2831 will not be enough to protect against further erosion of employee rights because its scope is too narrow. Litigants should emphasize the role of the larger organization in setting the stage for discrimination to counter the argument that the discrimination is only the responsibility of one or more errant individuals who are somehow not acting as part of the workplace. Prof. Green’s argument goes beyond the scope of equal pay, reaching all areas of employment discrimination law. It is worth exploring.

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