or her; and (4) a causal connection exists
between the whistle-blowing activity and
the adverse employment action.
employees, plaintiff must show that it is
more likely than not that he/she reasonably
believed that the alleged wrongful activity,
policy or practice about which the plaintiff
"blew the whistle" constituted improper
quality of patient care."
"reasonable belief" that the employer was
violating the law.
does not need to turn out to be true.
site standard for retaliation claims brought
under Title VII, CEPA and the LAD. In
University of Texas Southwestern Medi-
cal Center v. Nassar,
proper standard of causation for Title VII
retaliation claims. The Court noted that
Title VII provided for two types of employ-
ment claims. The first is what the Court
terms "status-based discrimination," which
includes prohibitions against employer
discrimination on the basis of race, color,
religion, sex or national origin in the work-
place. The second is employer retaliation
on account of an employee having op-
posed, complained of, or sought remedies
for, unlawful workplace discrimination. For
discrimination claims, claimants only need
to show that the motive to discriminate
was one of the employer's motives, even
if the employer also had other, lawful mo-
tives that were causative in the employer's
decision. However, since Title VII's anti-
retaliation provision appears in a different
section of the statute, courts were unclear
whether the legal standard for discrimina-
tion cases applied in retaliation cases.
In resolving this question, the majority
of the Supreme Court held that Title VII
retaliation claims must be proved accord-
ing to traditional principles of but-for
causation. The Court rejected the lower
standard of proof which required employ-
mixed motive, making it more difficult for
employees to prove retaliation claims.
On July 17, 2013, shortly after the
Supreme Court decision in Nassar, the
New Jersey Supreme Court addressed
retaliation and came down on the opposite
side under the LAD and CEPA. The case,
Battaglia v. United Parcel Service, Inc.,
was retaliated against for complaining to a
supervisor about co-worker and supervisor
misconduct and for making an anonymous
complaint to the corporate HR Manager.
The plaintiff-employee alleged, among
other things, a retaliation claim under the
LAD and under CEPA.
The Court ruled that a cause of action
alleging retaliation under the LAD only
requires the complaining employee's good
faith belief that the unlawful conduct oc-
curred, not an actual violation. An identifi-
able victim of actual discrimination is not
required.
The Court also briefly discussed
CEPA's waiver provisions, urging trial
courts to be careful to prevent plaintiffs
from bringing parallel claims under two or
more statutes. Under CEPA's waiver provi-
sion, a plaintiff cannot maintain claims
under both CEPA and another statute
where the protected activity is the same.
will have grounds to assert a retaliation
claim, employers should create a work-
ing environment in which employees feel
they can alert management to potential
problems and participate in investigations
without fear of retaliation. There are many
steps employers should take to reduce the
risk of retaliation claims and make claims
easier to defend:
against retaliation making it clear that
retaliation will not be tolerated. The
policy should encourage employees to
come forward with complaints of unlaw-
ful conduct without fear of retaliation.
how to respond when a complaint is
brought to their attention.
and explain to the employee that any
hostile or negative treatment should
be reported.
complaint, the smaller the chances are
that someone will retaliate against the
employee.
the claimant to report to a different
supervisor or provide an alternative
work schedule so as to reduce the risk
of retaliation. Employers should be
careful to ensure that any changes do
not appear to be retaliatory.
and to address it when you receive a
complaint.
2 Id.
3 See Roa v. Roa, 200 N.J. 555 (2010).
4 Craig v. Suburban Cablevision, Inc., 140 N.J. 623,
Corp., 284 N.J.Super. 543, 548-49 (App.Div. 1995).
discrimination was more likely than not a determinative
factor in the decision").
Educ., 177 N.J. 434, 448 (2003).
9 Dzwonar v. McDevitt, 177 N.J. 451 (2003)
10 N.J.S.A. 34:19-3.
11 Dzwonar, 177 N.J. at 462-64 (holding that CEPA "does
or clear mandate of public policy actually would be
violated if all the facts he or she alleges are true [; i]
nstead, a plaintiff must set forth facts that would support
an objectively reasonable belief that a violation has
occurred ... [and] the jury then must determine whether
the plaintiff actually held such a belief and, if so,
whether that belief was objectively reasonable").
13 2013 N.J. LEXIS 734 (N.J. July 17, 2013)