In a decision that could have far-reaching effects on LAD litigation, the Appellate Division has ruled that actions taken by an employer post-termination can constitute actionable retaliation as part of a continuing violation, even if they are unrelated to the workplace. In this particular case, the post-termination act in question was to cancel Plaintiff’s health insurance, retroactive to a date prior to his termination.

It's hard to imagine that it took this long, but plaintiff's are now required to establish that a retaliation claim under the NJLAD was reasonably filed and done in good faith.

In Carmona v. Resorts International Hotel, No. A-83-05 (February 21, 2007), the New Jersey Supreme Court held, in a case of first impression, that a plaintiff asserting a statutory retaliation claim under the New Jersey Law Against Discrimination ("LAD") must prove, as part of the prima facie case, that an initial complaint was filed reasonably and in good faith, and that an unreasonable, frivolous or bad-faith complaint is an insufficient basis to establish a LAD retaliation claim.

The New Jersey Law Against Discrimination ("NJLAD") not only protects employees from discrimination. It also protects them from retaliation. When an employee opposes or complains about discrimination in the workplace, the employer may not terminate him or take any other adverse action as a result. See N.J.S.A. 10:5-12(d). Unfortunately, that protection is open to abuse by employees who may attempt to "set up" a retaliation claim. Typically, a problem employee who may soon be terminated or otherwise subject to adverse action — for legitimate reasons such as misconduct or poor performance -- will make a preemptory "complaint" so that when the employer takes the action, it appears to follow closely on the heels of the complaint. The New Jersey Supreme Court's recent decision in Carmona v. Resorts International Hotel, Inc. should help to prevent that type of abuse. Slip op. (N.J. Feb. 21, 2007). In Carmona, the court held that an employee who claims retaliation under the NJLAD must prove that his original purported complaint about discrimination was "made reasonably and in good faith." Id. at 23. Of course, as the court stated, "[t]he obverse also holds true: an unreasonable, frivolous, bad-faith, or unfounded complaint" will not support a claim. Id.