Workplace discrimination and harassment in New Jersey

What the LAD protects

The LAD makes it illegal for an employer to refuse to hire, fire, or treat someone differently in pay, promotion or other terms of work because of a protected characteristic. The protected list in N.J.S.A. 10:5-12 is broader than federal law and includes:

These protections cover the whole working relationship, from job ads and interviews to pay, assignments, promotions, discipline and firing. The LAD also covers perceived traits, so treating someone badly because you think they are gay, disabled or from a certain country is illegal even if you are wrong.

• Race, color, creed, national origin, ancestry and nationality
• Sex, pregnancy and breastfeeding
• Sexual orientation and gender identity or expression
• Age
• Disability, actual or perceived
• Marital, civil union and domestic partnership status
• Genetic information, atypical hereditary cellular or blood traits, and refusing a genetic test
• Liability for service in the U.S. Armed Forces

Harassment is a form of discrimination

Harassment based on a protected trait is a form of discrimination under the LAD when it is serious enough to make the workplace hostile or abusive. Depending on the facts, that can be one serious incident or a pattern of smaller ones. Unwanted sexual advances, slurs, jokes aimed at someone's religion or race, and demands for favors in exchange for job benefits can all qualify.

Whether the employer is responsible depends on who did the harassing and how the company responded once it knew. Under N.J.S.A. 10:5-12(e), individuals can also be held personally liable for aiding and abetting discrimination, which is a key difference from federal law.

If you are being harassed, reporting it through your employer's complaint process, in writing, is usually an important step. It creates a record, gives the company a chance to stop it, and can affect the company's legal responsibility later. Keep a copy of what you send and any response.

Retaliation is its own violation

The LAD separately forbids reprisals against anyone who opposes discrimination, files a complaint, testifies, or helps in an investigation. Retaliation claims sometimes succeed even when the underlying discrimination claim does not, because the question is whether you were punished for speaking up.

The law also protects employees who discuss or disclose their pay and job information with coworkers, a lawyer or a government agency to look into possible discrimination.

Two paths: the Division on Civil Rights or court

You can bring an LAD claim in one of two places. The first is the NJ Division on Civil Rights (DCR), a state agency. You must file within 180 days of the discriminatory act. You start with an intake form online or by calling 1-833-NJDCR4U, and a lawyer is not required.

DCR asks for specific facts, records of what happened, the names and contact information of the people involved, possible witnesses, and supporting documents such as texts or emails. Gathering those before you start the intake form makes the process smoother.

When you contact DCR, an investigator conducts an intake interview to confirm the agency has jurisdiction, including that the incident happened within the past 180 days. If so, DCR prepares a verified complaint for you to sign. After that, the agency investigates. DCR offers free interpretation services. Under N.J.S.A. 10:5-13, after 180 days a complainant can ask to move the case to the Office of Administrative Law for a hearing, unless DCR has dismissed it or found no probable cause.

The second is Superior Court. You can sue directly without going to DCR first, and you generally have two years. In court you can ask for a jury, and N.J.S.A. 10:5-13 makes all remedies available in common law tort cases available to winning plaintiffs.

You cannot file with DCR and the court at the same time. You may be able to withdraw a DCR complaint and go to court if DCR has not issued a no probable cause finding and you are still within two years. If DCR finds no probable cause, you generally cannot refile in court and instead must appeal to the Appellate Division within 45 days.

Which path is better depends on your goals. DCR does not require a lawyer, but a no probable cause finding limits your later options. Court allows a jury and the full range of damages, but usually means hiring a lawyer. Many employment lawyers handle LAD cases on a contingency basis.

Damages and remedies

Under N.J.S.A. 10:5-13, all remedies available in common law tort cases are available to a winning LAD plaintiff, which can include lost pay and other compensatory damages, and in serious cases punitive damages. New Jersey's statute capping punitive damages (N.J.S.A. 2A:15-5.14) specifically does not apply to LAD claims. DCR can also order reinstatement, back pay and civil penalties.

The New Jersey Supreme Court has also held that an employer cannot use an employment application or contract to shorten the time to file an LAD claim.

Secrecy clauses after 2019

A 2019 law (N.J.S.A. 10:5-12.8) made non-disclosure provisions that hide the details of a discrimination, retaliation or harassment claim unenforceable against the employee. Settlement agreements resolving those claims must include a notice saying so. Employers can still protect genuine trade secrets and customer lists.

Federal law runs alongside the LAD

Federal laws such as Title VII, the ADA and the ADEA also prohibit workplace discrimination, but they generally apply only to larger employers and have their own filing steps with the EEOC. Many New Jersey workers rely mainly on the LAD because it covers small employers, allows individual liability and has no damages cap. A lawyer can tell you whether filing under both makes sense.

Some employees have also signed arbitration agreements as a condition of their job. Those agreements can affect where a claim is heard, but they cannot shorten the time you have to file with DCR. Bring any agreement you signed to your first meeting with a lawyer.