Contact: Steven B. Harz, Esq., Chairman
Labor & Employment Law Group
(201) 342-6000
NEW JERSEY SUPREME COURT PUTS A
GREATER BURDEN ON EMPLOYERS UNDER THE LAW AGAINST DISCRIMINATION (NJLAD)
Dear Clients and Friends:
On February 24, 2005, the New Jersey Supreme Court
issued a major decision in Zive v. Stanley Roberts, Inc. regarding
the evidence that is sufficient for a discharged employee to have a
valid employment discrimination claim against an employer under the
NJLAD. For many years, a discharged employee had the burden of
proving that the employee was “objectively qualified” and
“satisfying the employer’s legitimate expectations” with respect to
the job from which the employee was discharged in order to bring a
claim under the NJLAD. As a result of Zive, a discharged employee
now need only show that the employee “was actually performing the
job prior to termination.”
The issue in Zive involved an employee who was
terminated from employment and who alleged that such termination was
discriminatory and in violation of the NJLAD (the employee had
suffered a stroke prior to being terminated). The employer sought to
have the case dismissed alleging that the discharged employee failed
to satisfy the second prong of the necessary four part test in order
to have a claim under the NJLAD; that the employee was qualified and
met the “legitimate expectations of his employer”. New Jersey Courts
had consistently held prior to the Zive decision that in order for a
discharged employee to have a claim under the NJLAD, the discharged
employee must prove that the employee (1) belongs to a protected
class; (2) was performing at a level that met the employer’s
legitimate expectations; (3) the employee was terminated; and (4)
the employer sought someone to perform the same work after the
employee was terminated.
The Zive Court held that the plaintiff had satisfied the second
prong based upon the evidence that (1) the plaintiff had significant
experience as a sales executive prior to his employment by Stanley
Roberts; (2) the plaintiff had worked for Stanley Roberts for eight
years and had been actively engaged in the management and
administration of the company; (3) that until the time of
plaintiff’s stroke, plaintiff had never been told that his job was
at stake; and (4) that the plaintiff was terminated shortly after
his stroke, at which time Stanley Roberts continued the functions
that plaintiff had been performing. As such, the Court held that the
plaintiff provided sufficient evidence to prove a plausible claim
for discrimination in violation of the NJLAD.
In making its decision, the Zive Court was
addressing the evidence that is needed to satisfy the objective
standard with respect to the prong that requires the discharged
employee to prove that the employee was performing at a level that
met the employer’s legitimate expectations. The Court held that “all
that is necessary is that the plaintiff produce evidence showing
that the plaintiff was actually performing the job prior to
termination”. The Court continued that (along with the satisfaction
of the remaining prongs), this evidence is sufficient to support the
conclusion that the plaintiff’s claim of discrimination is plausible
enough to warrant continuation of the action.
As a result of the Zive case, it is now more
important than ever for employers to continually reevaluate and
review their policies and practices regarding all aspects of
employment including hiring, transferring, promotion, demotion and
firing.
The information in this letter is a broad overview
of the recent decision issued by the Court. It is not intended to
provide any legal advice or counsel.
For any questions or concerns regarding the impact
of this decision, or if you need assistance with regard to any other
Labor and Employment Law matter, please do not hesitate to contact
Steven B. Harz, Esq., Chair - Labor and Employment Law Group at (201) 342-6000 or via email at:
sharz@hertenburstein.com.
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