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) |