On Lad's Horizon: What Employers Need To Know About The Future Of New Jersey State Employment Discrimination Law

Previously published in New Jersey Defense Association

At the onset of the New Year, New Jersey em-ployers should reexamine the year that was and pre-pare for the year ahead. Since 2011, there have been several legislative proposals and judicial challenges intending to enlarge the umbrella of employment dis-crimination protections for applicants and employees.

The New Jersey state legislature has intro-duced a series of proposals that would amend New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. §§ 10:5-1 to -49, to insulate a host of classes from employment discrimination. Indeed, these pro-posals would prohibit or substantially limit discrimi-nation based on pregnancy, childbirth or breast-feeding; credit history; and criminal record. Although not directly amending LAD, the proposed "Healthy Workplace Act" – which would prohibit workplace bullying regardless of protected class status under LAD – portends a significant expansion of New Jer-sey state employment discrimination law.

This article does not intend to alarm employ-ers, but to provide caution and guidance on what the future may hold. As it stands, LAD has not been amended since 2007 and, as recently as 2011, the Third Circuit held that LAD could not be read to in-clude familial status among the classes protected against employment discrimination. Nevertheless, employers should begin to contemplate the ways in which they would address the potential changes that are proposed.

LAD – As It Stands

LAD pres-ently makes it an unlawful employment practice to discriminate against an employee or prospective employee on the basis of race, creed, color, national origin, ancestry, age, mari-tal status, civil union status, domestic partnership status, affectional or sexual orientation, genetic infor-mation, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any in-dividual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a ge-netic test to an employer. LAD provides for a private right for the unlawful employment practices enumer-ated therein, including retaliation, and allows for a full range of remedies, including equitable relief (such as reinstatement) and monetary awards encompassing front and back pay, compensatory damages, emotional distress damages, attorney's fees, and, even in some cases, punitive damages. In addition to the private right of action, employers that violate LAD may be subject to penalties not to exceed $50,000.

LAD's list of protected employment classes has remained static for the last few years as a result of legislative inaction and judicial rendering. As noted above, in Iovanella v. Genentech, Inc., No. 11-1266, 2011 WL 5833170 (3d...