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New Jersey Employment Law For The Out-Of-State Employer
This is the fifth in a series of Alerts we are preparing to help acclimate out-of-state employers to the nuances of New Jersey law. We appreciate any feedback to help us better serve both our New Jersey based and out-of-state clients.
New Jersey’s Law Against Discrimination
Employers in New Jersey are subject to the Law Against Discrimination, commonly referred to as the LAD. N.J.S.A. § 10:5-1 et seq. While many of the LAD’s provisions and protections will be familiar to out-of-state employers because of its similarities to Title VII, 42 U.S.C. § 2000e, there are several differences between New Jersey’s statute and the federal law.
All employers in New Jersey (except federal employers), regardless of size, are subject to the LAD. N.J.S.A. § 10:5-5. This coverage is broader than the scope of Title VII, the ADA, and the ADEA, which apply to employers with 15-, 15-, or 20-or-more employees, respectively. 42 U.S.C. § 2000e(b); 29 U.S.C. § 630(b). The LAD applies to all individuals who work in New Jersey for a covered employer. N.J.S.A. § 10:5-5. Employers with 14 or fewer employees should note that because the scope of the LAD is broader than the ADA, the LAD requires them to engage in an interactive process to determine whether a reasonable accommodation should be made for an employee with a disability. N.J.A.C. 13:13-2.5.
In addition to broader coverage, the scope of protected classes under the LAD is broader than under the federal anti-discrimination statutes.
The ADEA only protects employees age 40 or older. 29 U.S.C. § 631(a). The LAD, on the other hand, prohibits age discrimination against anyone beginning at age 18. Bergen Commercial Bank v. Sisler, 157 N.J. 188 (1999). Thus, while employees over 40 will be protected under both statutes, employees between 18-40 will be protected under the LAD, and employees under 18 have no protection from age discrimination. N.J.S.A. § 10:5-2.1.
The LAD prohibits discrimination on the basis of sexual or affectional orientation and gender identity or expression. N.J.S.A. § 10:5-12. “Affectional or sexual orientation” includes male or female heterosexuality, homosexuality, or bisexuality by inclination, practice, identity, or the perception of such orientation. N.J.S.A. § 10:5-5(ff). Title VII does not provide comparable protections.
The LAD also expressly prohibits discrimination on the basis of gender identity or expression, as separate and distinct categories from sexual orientation. N.J.S.A. § 10:5-12; N.J.S.A. § 10:5-5(rr). The LAD defines “gender identity or expression” as “having or being perceived as having a gender-related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.” N.J.S.A. § 10:5-5(rr). Although the definition does not specifically include transgender status, individuals who identify as transgender are covered by the statute. Although gender is a protected class under Title VII, gender identity and expression are not.
The LAD also protects employees from discrimination on the basis of their marital status, civil union status, and domestic partnership status. N.J.S.A. § 10:5-12. This includes protection from discrimination against employees who are going through divorces. Smith v. Millville Rescue Squad, 2014 WL 2894924 (App. Div. June 27, 2014). These protections are not provided under Title VII.
One of the most important differences between the federal anti-discrimination statutes and the LAD is the provision under the LAD for individual liability. An individual may be held liable under the LAD for aiding and abetting discriminatory conduct by the employer. N.J.S.A. § 10:5-12(e). An individual may only be held liable for aiding and abetting if the employer has been found to have committed an LAD violation. Because there are inconsistent rulings on whether an alleged harasser may be held liable for aiding and abetting his or her own conduct, an alleged harasser faces potential individual liability as an aider and abettor. The federal anti-discrimination statutes make no provision for individual liability.
Title VII and the LAD provide for similar remedies with one significant difference. Title VII provides for compensatory and punitive damages up to a statutory cap that increases based on the number of employees an employer has. 42 U.S.C. § 2000(e). The LAD provides for compensatory and punitive damages, but does not set a cap on recovery. N.J.S.A. § 10:5-3.
An individual may bring a claim for violation of the LAD to either the Division on Civil Rights or the Superior Court. N.J.S.A. 10:5-13. Unlike Title VII, there is no requirement that an individual first exhaust his or her administrative remedies. 42 U.SC. § 2000e-5(e)(1). An adverse no cause finding by the EEOC does not preclude the filing of an LAD lawsuit in the Superior Court. Hernandez v. Region Nine Hous. Corp., 146 N.J. 645 (1996).
If you have any questions about how New Jersey’s Law Against Discrimination could affect your organization, please contact Scott Ohnegian, Dan Zappo, or any member of Riker Danzig's Labor & Employment Group.
