Claiming to Be a Victim of Discrimination Isn’t Enough to Win an Employment Discrimination Case

HNWEmployment Law

employment discriminationI notice that many employees (actually they are now former employees when they bring their lawsuit) allege a violation of the New Jersey Law Against Discrimination (LAD) and claim they were fired, demoted, or passed over for promotions or other opportunities because of race, national origin, gender, religion, etc.

In one case I recently reviewed, the plaintiff worked for the state of New Jersey in various positions for over twenty-five years before “retiring”.

After her retirement, she filed a lawsuit and claimed the state denied her promotions because she filed a complaint the Equal Employment Opportunity Commission (EEOC) in 2010 asserting discriminatory behavior and harassment because she was not selected for certain positions within her group.  She contends defendants retaliated against her because of the complaint.

One important outcome of the case was the trial court finding that any alleged instances of discrimination that occurred many years earlier were barred under the two-year statute of limitations established under N.J.S.A. 2A:14-2.  The take away to my readers here is that you cannot wait too long before you bring legal action or your case may get dismissed for being filed late.

In discrimination cases, I find that a judge will closely look for any evidence of discriminatory intent, evidence of impermissible motive, or retaliation.  A court will not allow a plaintiff to speculate that the selection of a different candidate for a position(s) was due to discrimination or a retaliatory motive.  A plaintiff must present proofs to support his or her allegations.

Said the judge: “Plaintiff has not pointed to any record, fact suggesting discrimination or retaliation other than the obvious fact of her Indian national origin and age, as well as the . . . earlier EEO[C] complaint.”  And, “[t]here is nothing to suggest any decision-maker was motivated by a bias in selecting another candidate for a senior rehabilitation counsel or position.”

Understanding the Law in a Discrimination Case

Although LAD forbids unlawful, discriminatory employment practices, it “acknowledges the right of employers to manage their businesses as they see fit.  “What makes an employer’s personnel action unlawful is the employer’s intent.”

To prove discriminatory intent, our Supreme Court has adopted a burden-shifting framework, meaning the burden of proof shifts during the case between the employee and the employer.

Shifting the burden of proof goes as follows:

The plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant must then show a legitimate nondiscriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that the defendant’s stated reason was merely a pretext or discriminatory in its application.

To prove a prima facie case, a plaintiff must show (1) they are a member of a protected class, (2) they are “otherwise qualified” and can perform “the essential functions of the job”; (3) they were terminated or not selected for a position; and (4) “the employer thereafter sought similarly qualified individuals for that job.”

Understanding the Law on Retaliation

To prove a prima facie case of retaliation under the LAD, a plaintiff must demonstrate “(1) plaintiff was in a protected class; (2) plaintiff engaged in protected activity known to the employer; (3) plaintiff was thereafter subjected to an adverse employment consequence; and (4) there is a causal link between the protected activity and the adverse employment consequence.”

The evidentiary burden is ‘rather modest: it is to demonstrate to the court that plaintiff’s factual scenario is compatible with discriminatory intent – i.e., that discrimination could be a reason for the employer’s action.’”  When a plaintiff has proven such, “a presumption arises that the employer unlawfully discriminated.

After the plaintiff has established a prima facie case of discrimination, “the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.  To rebut the presumption, “the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection in such a way that would “be legally sufficient to justify a judgment for the defendant.”

When an employer has put forth such evidence, “the presumption of unlawful discrimination disappears,” and the burden shifts back to the [employee] to show the employer’s proffered reason was merely a pretext for discrimination.”

“To prove pretext . . . , a plaintiff must do more than simply show that the employer’s reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent.” Direct evidence (meaning evidence equal to a smoking gun in a murder case) is not necessary, but the “plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact-finder could rationally find them ‘unworthy of credence,’ . . . and hence infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.’”

Here the state of NJ provided legitimate nondiscriminatory reasons for not appointing plaintiff to the two positions.  And plaintiff could not demonstrate the reasons were pretextual.  She only offered speculation that defendants acted with a discriminatory motive.

To discuss your NJ employment law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Employment Law Attorney

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