Termination Cases Under The New Jersey Law Against Discrimination¹ Aided By The New Jersey Supreme Court

In order for a terminated employee to prove that he or she has been discriminated against by his or her employer in violation of the New Jersey Law Against Discrimination (“NJLAD”), there is a three-step legal process through which he or she must go. First, the employee must present what is known as a “prima facie case.” If the employee has shown a prima facie case, the employer is then required to present evidence that the employee’s termination was for legitimate, non-discriminatory reasons. The employee is then required to show that the reason or reasons offered by the employer are merely pretext and not the real reasons that the employee was terminated.²

In order to establish a prima facie case against his or her employer, a terminated person alleging discrimination under the NJLAD must be able to show that: (1) he or she is a member of a protected class (i.e. age, gender, race, etc.); (2) he or she was performing the job at a level that met his or her employer’s legitimate expectations; (3) he or she was nevertheless fired; and (4) the employer sought someone else to perform his or her functions after he or she was terminated.³ In a recent decision⁴, the New Jersey Supreme Court has explained what an employee is required to show in order to establish a prima facie case in a termination matter brought under NJLAD with respect to the second requirement.

Until recently, there was disagreement over what evidence was needed in order to meet the second requirement, the employer’s legitimate expectations. Some argued that a poor performance rating or other performance issues resulted in a failure to show that the employee met the employer’s legitimate expectations and therefore the employee should not be permitted to bring a lawsuit against the employer. Others argued that this was too harsh and would keep persons who had been discriminated against from bringing their claims to court. After considering both sides of the argument, the New Jersey Supreme Court decided that disqualifying a person from bringing a lawsuit because of a poor performance rating or other performance issues was not what the law intended. The Court found that in order to satisfy the second requirement (to show that the employer’s expectations had been met), the terminated employee needed to show only that he or she had been performing the functions of the position at the time he or she was terminated. The Court said that the issue of poor performance ratings or other performance issues were more properly argued in the second or third step of the legal process. The Court reiterated that the burden of showing a prima facie case was supposed to be “rather modest,” “not onerous,” and “relatively simple.” The Court also noted that the NJLAD was to be construed liberally in order to combat discrimination.⁵ Therefore, the employee should not be required to justify his work performance in the beginning stages of the lawsuit but should be permitted to proceed to the next step in the legal process.

This holding by the New Jersey Supreme Court should enable more terminated employees to proceed with their discrimination claims beyond the first step of the legal process. By showing that they are members of a protected class, that they have been performing the positions from which they were terminated, that they were nevertheless fired, and that others are now performing the functions of their positions, terminated employees will force their employers to present evidence of why they were terminated. This will then give the employees the chance to show that these reasons are not the true reasons for the terminations. It should be noted however that the Court said that if an employee acknowledges performance issues, it will lower the employer’s burden in the second step of the legal process and make it more difficult for the employee to show pretext in the third step of the legal process.

• ¹ N.J.S.A. 10:5-1 et seq.
• ² See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
• ³ Clowes v. Terminex Int’l, Inc. 109 N.J. 575, 597 (1988).
• ⁴ Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2005).
• ⁵ Id. (Quotation cites omitted).