Last week, in Battaglia v. United Parcel Service Inc., No. A-86/87-11, the New Jersey Supreme Court held, among other things, that employee complaints about workplace conduct may constitute protected activity under the New Jersey Law Against Discrimination (“NJLAD”) retaliation provisions even if the complained-of conduct does not amount to discrimination. The Court found that a good faith belief on the part of the complaining employee that the conduct was prohibited under the NJLAD was sufficient to constitute protected activity. This holding could significantly expand the class of employees who may later allege unlawful retaliation in response to adverse employment actions. Accordingly, employers are advised to be particularly mindful of all employee complaints of workplace misconduct and to train employees as to the parameters of conduct prohibited under the NJLAD.
Plaintiff, Michael Battaglia, an employee of United Parcel Service, Inc. (“UPS”), alleged that his supervisor, on several occasions, used crude sexual language when referring to female employees. However, the supervisor did not direct these comments to or utter them in the presence of any female employees. Plaintiff also alleged that he heard rumors and observed behavior suggesting his supervisor was having an affair with a subordinate female manager. Plaintiff further alleged that one or more mangers “were going out for liquid lunches and abusing the UPS credit card” and not returning to work, but Plaintiff did not believe this conduct was fraudulent. Plaintiff met with supervisors to discuss the alleged conduct at issue and sent an anonymous letter to human resources that contained vague allegations of improper language and unethical behavior. UPS investigated the anonymous complaint but had difficulty conducting the investigation given the vague nature of the allegations, and no action was taken as a result of the investigation. The investigators believed that Plaintiff was the author of the complaint. In the meantime, according to UPS, Plaintiff was disciplined and demoted for incidences of poor behavior that were unrelated to the complaints.
Plaintiff filed suit against UPS, alleging his demotion (1) violated the NJLAD because it was retaliation for his complaints related to his supervisor’s gender-based comments and affair, and (2) violated the Conscientious Employee Protection Act (“CEPA”) because it was in retaliation for his complaints about improper use of credit cards. Ultimately, the jury found UPS liable on the NJLAD and CEPA claims, and awarded Plaintiff damages for economic loss and emotional distress. The emotional distress award was partially based on Plaintiff’s alleged future emotional distress injuries. Thereafter, the Appellate Division affirmed the jury’s CEPA verdict but reversed the jury’s NJLAD verdict and emotional distress damages award.
In a unanimous decision, the New Jersey Supreme Court reinstated Plaintiff’s NJLAD verdict and struck down his CEPA verdict. Additionally, it affirmed the Appellate Division’s decision that the trial court erred in allowing future emotional distress damages without expert testimony on the issue of permanency.
The Supreme Court held that to recover for retaliation under the NJLAD, a New Jersey employee must show only that he or she had a “good faith” belief that the conduct the employee complained about violated NJLAD. No actual discrimination against an identifiable victim is required.
In striking down the CEPA verdict, however, the Supreme Court held that in assessing a fraud-based CEPA claim the focus should be on the employee’s reasonable belief that the complained of conduct was fraudulent and occurring. The statute does not protect employees whose complaints are “vague and conclusory” or are about “trivial or minor matters, or generalized workplace unhappiness.” The misconduct must be described with “care and precision.” Under this reasoning the Supreme Court found that neither Plaintiff’s anonymous letter nor his alleged comment to his supervisor about liquid lunches and credit card abuse was sufficient protected activity to support a CEPA claim.
Additionally, the Supreme Court held that recovery of damages for future emotional distress requires expert testimony to establish permanency. A jury is not permitted to speculate regarding a plaintiff’s future emotional distress damages simply by taking into account the plaintiff’s age and life expectancy.
In light of this decision, employers should be particularly mindful of employee complaints of workplace misconduct that could violate the NJLAD, even when the conduct complained of may not constitute actual discrimination. Complaints that involve improper language or actions, whether or not directed to or observed by a member of a particular protected class, may qualify as protected activity under the NJLAD. Employers should be sure to investigate complaints, take appropriate corrective measures, and emphasize in their periodic employee training the parameters of conduct prohibited under the NJLAD.