Governor Murphy Proposes Numerous Changes To The New Jersey Law Against Discrimination

On February 18, 2020, Governor Phil Murphy proposed a host of legislative changes to the New Jersey Law Against Discrimination (NJLAD) (N.J.S.A. 10:5-1, et seq.). According to the governor, the changes aim "to clarify legal grey areas" and would (1) codify what alleged misconduct constitutes hostile work environment harassment; (2) require employers to provide anti-harassment, -discrimination, and -retaliation policies and training to employees; (3) require employees to keep detailed internal-complaint records; (4) require employees to report information about those complaints to the Division on Civil Rights (DCR); (5) bring domestic workers and interns under the protection of the NJLAD; and (6) increase the statute of limitations for most NJLAD claims to three years.

Even though the bill's content may change, employers may want to watch its progress. The bill's requirements will most likely increase training and compliance costs and may create unintended liability. Of particular importance is the bill's seeming endorsement of a scenario that may be familiar to employers that have been sued for NJLAD violations: an employee basing a harassment claim on overreactions to ordinary stressors, and then bolstering that claim with gossip and exaggerated evidence of trivial slights or inconveniences. While courts historically have disregarded this evidence, the bill requires its consideration. In this respect, the bill would significantly reduce the already light burden carried by NJLAD plaintiffs and greatly reduce the viability of an employer's standard argument that the alleged misconduct is neither severe nor pervasive enough to constitute harassment.

Formalizing the Legal Standard for Hostile Work Environment Harassment

The bill would codify the familiar hostile work environment harassment standard, but it would significantly lower the threshold for how offensive or frequent misconduct must be in order to be considered "severe" or "pervasive." Even a single nonphysical incident could constitute harassment, and a complainant need no longer show the incident caused a "loss of tangible job benefits" or a "loss of productivity." Similarly, the bill would require courts to weigh the alleged misconduct under "the totality of the circumstances," including the complainant's "subjective reactions" to the misconduct) and his or her secondhand knowledge of similar misconduct (even though the complainant may not have directly witnessed that misconduct).

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