When it comes to workplace retaliation, the difference between winning and losing can hinge on whether you are in state court or federal court. A recent New Jersey appellate decision reinforces that state anti-discrimination laws may not just mirror federal law – in some ways, they can give employees broader protection.
TL;DR: In this case, the employee hired a lawyer to complain about religious discrimination. She ultimately lost that claim at trial, but the step of hiring a lawyer still counted as protected activity under the LAD and could support a retaliation claim. The court also made clear that taking Family and Medical Leave Act (FMLA) leave is not a protected activity under the LAD for retaliation purposes, so it cannot support a disability-based retaliation claim under that law. However, negative treatment or comments following FMLA leave could still support a disability discrimination or hostile work environment claim if the leave was taken for a condition that qualifies as a disability under the LAD. The appellate court ordered a new trial limited to two claims: disability-based hostile work environment, and retaliation for hiring an attorney.
đź“„Read the decision.
Attorney Letter and FMLA Leave Set the Stage for a Retaliation Fight
The plaintiff, a township employee, claimed she was subjected to a hostile work environment and retaliation. In January 2018, she hired an attorney who sent a letter to the township alleging religious discrimination and a hostile work environment, but making no mention of disability discrimination. The following month, she took FMLA leave for anxiety.
When she returned about twelve weeks later, her responsibilities were drastically altered. Instead of organizing and supervising township recreational events, she was assigned to fold t-shirts, clean the township car, and empty office closets, including her supervisor’s. She testified that her supervisor also mocked her for taking FMLA leave, told her she needed medication, and said all she was good at was taking FMLA leaves.
At trial, the jury rejected her religious discrimination claims but found for her on disability-based hostile work environment and retaliation claims, awarding substantial damages. On appeal, the court found that the jury instructions and verdict left unclear whether the retaliation finding was based on hiring an attorney (protected under the LAD) or taking FMLA leave (not protected under the LAD). The court vacated the verdict and ordered a new trial on those issues.
This difference – between an action the LAD recognizes as protected for retaliation purposes and one it does not – was an important factor in the appellate court’s decision and illustrates how state and federal retaliation protections can diverge in meaningful ways.
Why State Law Treated the Attorney-Hire as Protected Activity
Under federal laws like Title VII, retaliation protections cover opposing unlawful practices or, for example, participating in EEOC proceedings. New Jersey’s LAD goes further – it forbids reprisals against someone who has “sought legal advice regarding rights under [the LAD].”
That means a plaintiff who hires a lawyer about potential discrimination is engaged in protected activity, even without filing an EEOC charge or a lawsuit. In this case, the plaintiff’s January 25, 2018 attorney letter was enough to trigger LAD protections, even though she ultimately lost the religious discrimination claim. The key is whether the complaint was reasonable and made in good faith, not whether it could be proven in court.
Why FMLA Leave Did Not Trigger State-Law Retaliation Protection — But Could Still Matter
While the LAD protects attorney-hire retaliation, it does not cover retaliation for exercising purely federal rights unless they overlap with state law. The Family and Medical Leave Act (FMLA) has its own anti-retaliation provisions, but they are enforced separately.
Here, taking FMLA leave was not a protected activity under the LAD, so it could not support a disability-based retaliation claim under that law. Because the jury instructions did not make clear whether the retaliation verdict was based on the attorney-hire (protected) or the FMLA leave (not protected), and because of gaps in the evidence against some defendants, the appellate court ordered a new trial.
However, the fact that an employee takes FMLA leave for their own serious health condition can still be relevant under the LAD in a different way. If the condition qualifies as a disability under state law, and the employer makes negative comments or changes job duties in response, that conduct may support a disability discrimination or hostile work environment claim. In this case, the plaintiff alleged that her supervisor’s remarks about her FMLA leave and medication reflected hostility toward her mental health condition, which could be a disability, even though the leave itself was not protected activity for retaliation purposes.
Bottom line: Retaliation standards vary between state and federal law. In some states, including New Jersey, hiring a lawyer about discrimination can be protected activity even if the underlying claim fails, and negative treatment after leave for a disability may still support a discrimination claim even if the leave itself is not protected for retaliation purposes. Employers who assume the laws are identical risk getting caught in the gaps.