On July 17, 2013, the New Jersey Supreme Court held that a plaintiff need not demonstrate an actual violation of the New Jersey Law Against Discrimination (NJLAD), let alone an identifiable victim, to prove a claim of retaliation. In Battaglia v. United Parcel Service, Inc., 214 N.J. 518 (2013), the plaintiff’s male supervisor made inappropriate sexual comments to his fellow male co-workers (including referring to women as “c***s” and “f***ing b****s,” expressing his desires to engage in sexual activity with a female employee, and referring to an employee named Regina as “Vagina”). The supervisor never made the comments in front of any female employees but only in the presence of the plaintiff, who is male, and other male employees. Nonetheless, the New Jersey Supreme Court held that the plaintiff had engaged in protected activity sufficient to sustain the jury’s liability verdict finding that the employer had retaliated against the plaintiff for complaining of his supervisor’s conduct. In so holding, the Court reaffirmed that an employee claiming retaliation under NJLAD for complaining of discrimination in the workplace need only demonstrate a good faith and reasonable belief that the complained of conduct violated the NJLAD to qualify as “protected activity.”
The New Jersey Supreme Court also reaffirmed that under New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA), vague and conclusory complaints about trivial or minor matters and generalized workplace unhappiness are not protected activity. The plaintiff in Battaglia had complained to his supervisor that certain employees were going out for “liquid lunches” and abusing the UPS credit card. However, the plaintiff admitted at trial that he did not witness the alleged improprieties and did not believe that the employees’ actions were fraudulent. The plaintiff also wrote a letter to the employer’s human resources department, which made a general statement about “so many examples of poor and unacceptable, unethical behavior.” The Court ruled that none of the plaintiff’s objections constituted whistleblowing activity sufficient to support a finding of liability under CEPA.