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Whistleblower Protection: Employers Can’t Fire New Jersey Whistleblowers or Their Fiancés

imagesCAWQ89PS.jpgThe United States Supreme Court recently issued a decision on a contentious question in employment law , with important implications for New Jersey employment disputes – can an employee who did not engage in protected activity sue his employer for firing him to retaliate against a friend or family member who is a whistleblower? Lower courts had split, but the Supreme Court unanimously sided with the employee and said yes.

Anti-Discrimination Statutes

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of an employee’s “race, color, religion, sex, or national origin.” New Jersey’s Law Against Discrimination also prohibits discrimination for these reasons, and also because of an employee’s age, ancestry, disability, marital or civil union status, domestic partnership status, sexual orientation, gender identity, atypical hereditary cellular or blood trait, military service obligations, nationality, genetic information, refusal to submit to a genetic test, or refusal to let an employer know the results of a genetic test.

Both Title VII and the New Jersey’s Law Against Discrimination prohibit employers from retaliating against employees who make complaints of discrimination.

The Thompson Case

In Thompson vs. North American Stainless, LP, Miram Regalado filed a charge with the United States Equal Employment Opportunity Commission (the “EEOC”) alleging that her employer, North American discriminated against her because of her gender in violation of Title VII. Three weeks later, North American fired her fiancé, Eric Thompson. Thompson then filed a charge with the EEOC, claiming that North American fired him to retaliate against Regalado for her charge of discrimination.

After efforts by the EEOC to resolve the dispute failed, Thompson sued his former employer in federal court. North American argued that Title VII only prohibited retaliation directly against the employee who filed the charges. Since Regalado filed the charges, North American argued, it could not have violated Title VII even if it fired Thompson in retaliation for Regalado’s charge. Under this reasoning, in order to have violated Title VII, North American would have had to fire Regalado. The federal judge agreed and dismissed Thompson’s suit without letting him produce evidence to support his charges. Even if Thompson’s claims true, the court said, firing Thompson to retaliate against Regalado did not violate Title VII.

The United States Supreme Court made short work of this argument. Justice Antonin Scalia, writing for a unanimous court, held that if Thompson could prove he was fired in retaliation for Regalado’s complaint, he could recover against his employer for violating Title VII.

First, Justice Scalia explained that allowing employers to retaliate against friends and family members of “whistleblowers” would deter any employee from ever standing up to discrimination. Justice Scalia acknowledged North American’s argument that it would be difficult to draw a clear line for determining who would and would not have a close enough relationship with the whistleblower for firing, demotion or harassment to constitute retaliation. However, he reasoned that just because enforcing the law might cause courts to work harder was no reason to avoid it.

Second, North American argued that because Thompson was not the whistleblower himself, he was not “aggrieved,” as required by Title VII. However, Justice Scalia explained that Thompson was not an “accidental victim,” or unintended “collateral damage.” Firing him was the means chosen to retaliate against Regalado. Therefore, Thompson must be included in the group protected by Title VII, allowed to sue and, if he can prove he was fired to retaliate against Regalado, recover lost wages and perhaps attorneys fees and punitive damages against North American.

Application to New Jersey Law

Normally employees fired in New Jersey pursue their discrimination or retaliation claims under New Jersey’s Law Against Discrimination rather than Title VII. First, the time to file a discrimination or retaliation suit in New Jersey is longer. Second, there is no need to go through the cumbersome EEOC process. Third, New Jersey’s Law Against Discrimination is more favorable to employees than Title VII. For example, under the Law Against Discrimination an employee can sue for harassment which is either severe or pervasive; under Title VII it must be both severe and pervasive. Fourth, the Law Against Discrimination, unlike Title VII, applies even to the smallest of employers.

However, the Thompson case is extremely important in New Jersey as well. New Jersey courts generally look to federal court decisions for guidance in interpreting anti-discrimination laws, at least where the federal cases provide equal or greater protection to the employee. This is especially likely with the Thompson decision for several reasons. First, there appears to be no reported decision by a New Jersey court directly on this question. Second, the United States Supreme Court’s decision was unanimous, and was written by Justice Scalia who is often perceived as being unfriendly to employees’ rights, thus indicating that the decision is fairly uncontroversial. Third, it expands protection from discrimination and retaliation, rather than restricting it.

Most importantly, however, the decision made sense and it was just. Since the purpose of the anti-retaliation provision of the Law Against Discrimination is the same as that of Title VII, it would make no sense to allow retaliation against friends and family of whistleblowers. It would allow a company which discriminates to prevent lawsuits or whistleblowing by retaliating against those the whistleblower cares about – retaliation against friends and family has been a favored method of dictators throughout history for good reason. Likewise, the Thompson ruling prevents a great injustice. Any other course of action would visit a terrible injustice upon both the whistleblower and innocent bystanders, while allowing the perpetrator to escape freely. For this reason, there is a high probability that the New Jersey Supreme Court will adopt the Thompson rule as the same for New Jersey’s Law Against Discrimination.

McLaughlin & Nardi’s attorneys are experienced in representing both New Jersey employees and employers in whistleblower, retaliation and discrimination claims, and all aspects of their employment relationship, from hiring to litigation and arbitration. To learn more about what we can do to help, please visit our website or contact one of our lawyers at (973) 890-0004.

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