In each of the last two days, the Supreme Court issued unanimous opinions involving the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (“LAD”). Yesterday, in Smith v. Millville Rescue Squad, 225 N.J. 373 (2016), the Court ruled that the LAD’s protection against discrimination based on marital status extends to persons who have separated from a spouse and are in the process of divorce. Judge Cuff wrote that opinion. Today, in Griffin v. City of East Orange, 225 N.J. 400 (2016), with Justice Patterson writing, the Court reversed a defense verdict in an LAD case because certain evidence was wrongly excluded.
In Smith, plaintiff was terminated from his employment after he notified the CEO of the defendant rescue squad, John Redden, that plaintiff and his wife, who was also employed by the rescue squad, were separated and were about to begin divorce proceedings. Redden said that he thought the divorce would be “ugly,” that plaintiff had had eight months to “try to make things right” with his wife, and that he would have to report all this to the rescue squad’s Board of Directors. Board meeting minutes relating to the termination purported to show discussion of “operational restructuring,” and also referred to plaintiff’s work performance as “very poor for some time.” Plaintiff, however, testified that he had been promoted twice, received annual raises, and had had only one performance review, a “positive” one.
Plaintiff sued under the LAD’s protection against discrimination based on sex and marital status. The case went to trial, and defendants obtained an involuntary dismissal at the close of plaintiff’s case. On the issue that eventually reached the Supreme Court, the Law Division ruled that plaintiff had not offered any evidence that he was terminated because he was either married or unmarried, because he had had an affair (he had), or because his employer treated employees differently based on whether they were “single, married, separated or divorced.” Rather, the Law Division said, plaintiff’s evidence showed that defendants were concerned about “the likelihood of an ugly or messy divorce,” which did not give rise to a marital status discrimination claim.
The Appellate Division reversed, and defendants obtained review by the Supreme Court. Judge Cuff’s opinion agreed with the Appellate Division, applying de novo review to the purely legal issue of “whether the LAD’s prohibition against discrimination based on marital status extends to a person who has separated from their spouse and is in the process of obtaining a divorce.”
Looking at the plain language of the LAD, and recognizing that the LAD is remedial legislation that is to be broadly construed to eradicate “the cancer of discrimination in the workplace,” Judge Cuff found that the statute “prevents employers from resorting to invidious stereotypes” in dealings with employees. “Marital status,” as used in the LAD, includes “those who are single or married and those who are in transition from one state to another…. A person considering marriage or divorce or confronting the death of a spouse should not fear that a marriage ceremony, a divorce decree, or a funeral would trigger loss of employment or a promised promotion.”
At the same time, Judge Cuff cautioned, the LAD does not jeopardize otherwise valid anti-nepotism policies. Nor does it interfere with “an employer’s legitimate business judgment and policies regarding its workforce,” such as disciplining or terminating an inattentive or inefficient employee.
After discussing the difference between employment discrimination cases that rely on direct evidence and those that are based on circumstantial evidence, Judge Cuff concluded that, on the facts here, plaintiff had offered direct evidence that defendants had terminated him “based on his employer’s stereotypes about the impact his divorce might have on the work performance of him and others.” The remarks of Redden, defendants’ CEO, if accepted by the jury, could establish direct evidence liability. Applying the same standard to review of the involuntary dismissal that obtained in the Law Division, Judge Cuff found that if plaintiff’s evidence were accepted, it showed that plaintiff was terminated “in significant part” due to his marital status.
Today’s case, Griffin, focused more on evidentiary issues. There, several employees of defendant City of East Orange alleged that the same supervisor had sexually harassed them. The City retained an outside attorney to investigate the allegations. The investigator interviewed a number of persons, including Corletta Hicks, another City employee and a friend of one of the complainants. Hicks portrayed the alleged harasser very positively and two of the complainants very negatively. The investigator concluded that none of the complaints against the supervisor had merit.
The three employees brought an LAD claim. When Hicks was deposed, she revealed that the Mayor of East Orange, Robert Bowser, had instructed her to praise the supervisor and denigrate the plaintiffs. Hicks had meanwhile filed her own, unrelated EEOC and LAD claims against Bowser and the City. At trial, it was agreed that Hicks could not testify about her separate litigations, But the Law Division also precluded Hicks from testifying about what Bowser had told her to tell the investigator. The jury returned a defense verdict. Plaintiffs appealed, and the Appellate Division affirmed. The Supreme Court granted review, and today it reversed and remanded for a new trial.
The investigator’s report, which did not include Hicks’s subsequent testimony, was obviously a key component of the defense’s position. Had Hicks been allowed to testify fully, and had the jury believed her, the jury could have found that the City, through Mayor Bowser, had “materially interfered with the independent investigation of plaintiffs’ claims. Such a finding would have supported plaintiffs’ hostile work environment sexual harassment claims under both the direct and vicarious liability theories, undermined the City’s defense to those claims, and strengthened plaintiffs’ claims for punitive damages.” Thus, the Hicks testimony that the lower courts excluded was relevant.
That did not end the inquiry. Justice Patterson went on to discuss the fact that what Mayor Bowser allegedly said to Hicks was hearsay. The Court held, however, that the testimony under a hearsay exception for admissions by a party opponent, under Evidence Rule 803(b)(4). The Mayor was an agent of the City, and his discussion with Hicks was on a subject that was within the scope of his agency as the City’s highest official.
Finally, defendants argued that even if the excluded testimony were otherwise admissible, Evidence Rule 403 precluded its admission. That rule gives trial courts discretion to exclude evidence, among other instances, where “its probative value is substantially outweighed by … the risk of undue prejudice.” Rule 403, however, allows exclusion only where there is “undue” prejudice, not “merely because it would have negatively impacted the defense.” Justice Patterson concluded that the Hicks testimony had probative value that was not substantially outweighed by a risk of undue prejudice. The rulings below were thus reversed and the case was remanded for a new trial.
Both of these decisions vindicate the interests of the LAD, and both were rightly decided. Each of them reversed unrealistically narrow rulings at the Law Division level and, in one of the cases, by the Appellate Division. The Supreme Court continues to be a strong guarantor of the right of employees to be free of unlawful discrimination, just as the Legislature intended.