New Jersey Employment Lawyer Blog

In a recent ruling by the New Jersey Appellate Division, an employment lawyer representing the employer was successful in defending a wrongful discharge case by asserting the economic downturn as a defense. Now that the economy has been ailing for quite some time, it is likely that the Appellate Division will be seeing a significant number of employment lawyers invoking the economic downturn as the employer's nondiscriminatory reason for termination. I suspect employment lawyers in New Jersey representing management are going to utilize the economic downturn as a defense to employment cases on a more frequent basis.

In McCann v. Trump Marina, Inc., App. Div. (per curiam) (9 pp.) Plaintiff Robert McCann appealed summary judgment dismissal of his employment discrimination action against defendants. McCann, along with his department, were laid off by defendant Trump Marina, Inc., a hotel and casino in Atlantic City, New Jersey, due to a financial crisis. McCann filed a lawsuit alleging that he had been terminated in violation of the New Jersey Law Against Discrimination. He had also alleged that he was subjected to a hostile work environment, and retaliation. The appellate panel affirmed summary judgment. The panel found there was no credible evidence that Trump Marina's broad-based staff reduction was a ruse or screen for termination of McCann based on race or gender discrimination, or retaliation. The panel found that while some employees were rehired or placed elsewhere, the Trial Judge correctly determined that there was no credible evidence that McCann requested either. Further, Judge Blue correctly concluded that there was no credible evidence that conduct by a security guard was motivated by a discriminatory animus or was the result of an action by McCann's co-workers.

Employment lawyers in New Jersey and the rest of the nation are going to see some changes in the enforcement of employment laws. The U.S. Equal Employment Opportunity Commission is going to receive an extra $23 million to help tackle a growing problem: backlogged cases at the EEOC. The 2010 omnibus appropriations bill, passed by the U.S. House of Representatives on Dec. 10 and by the Senate on Dec. 13, would place those additional millions to the EEOC. The money shall be used to help the agency get a handle on more than 70,000 unresolved discrimination complaints.
Recently, the EEOC saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 -- 95,402. This was also a nearly 20% increase from 79,896 in 2007. Approximately two-thirds of the cases involved racial or gender discrimination. In the meantime, the agency has watched staffing levels shrink 25% in recent years, from 2,850 in 2001 to 2,150 in 2008. The agency is now hiring 200 new investigators.
Many states have their own version of the EEOC. In New Jersey, discrimination complaints can be filed with the New Jersey Division on Civil Rights.

Employment Lawyers representing plaintiffs were dealt a set back by New Jersey's Appellate Division this week when the Court took a rare turn away from its usual liberal stance on discrimination cases. The New Jersey Appellate Division recently held that there is no cause of action under the New Jersey Law Against Discrimination for discrimination in pay and compensation benefits when the discrimination is based on decisions that occurred outside the LAD two-year statute of limitations. The Court stated that the fact that the impact of the discriminatory decision-making continued the pay disparity into the two-year period before the complaint was filed is not relevant. The New Jersey Appellate Division followed the principles and guidance of the federal Title VII jurisprudence, and the United States Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., notwithstanding Congress' subsequent adoption of the Lily Ledbetter Fair Pay Act of 2009. The Appellate Division stated that the Legislature, not the court, must amend the LAD to achieve the result Congress adopted.

Employment lawyers in New Jersey and rest of the Country are going to follow this case closely. The United States Supreme Court recently asked the solicitor general for the government's position on the case of Staub v. Proctor Hospital, a case which may resolve a conflict in the United States federal circuits. The issue before the Court is over the so-called "cat's paw theory". The theory holds an employer liable for discrimination when a final decision-maker is influenced by a lower-level employee with discriminatory motives to take an adverse action against another worker.

The First, Third, Fifth and Ninth circuits have upheld the cat's paw claim where the terminated employee was able to prove that a biased worker actually influenced the final decision. However, the Fourth Circuit has held that if the final decision-maker's motive is pure, an employer cannot be held liable for a subordinate's alleged bias. The 10th Circuit actually requires evidence that the biased subordinate caused the firing or demotion through his discriminatory recommendations, reports or actions.