On Thursday, June 10, 2021, the Senate Labor Committee considered Senate Bill 3352, which is sponsored by Senate Majority Leader Loretta Weinberg. The bill proposes radical changes to the New Jersey Law Against Discrimination [NJLAD] that will vastly increase frivolous litigation against all New Jersey businesses, big and small. All businesses should therefore take notice of this bill, contact their legislator, voice opposition to it, and offer a preferred alternative, as suggested below.
By way of background, in February 2020, the New Jersey Division on Civil Rights (“DCR”) released a report entitled “Preventing and Eliminating Sexual Harassment in New Jersey”.
This report presented the DCR’s findings and recommendations from three public hearings it conducted in response to widespread public concern regarding sexual harassment generated by the #metoo movement.
The report was accompanied by proposed legislation drafted by the DCR to implement its recommendations in the workplace, housing and education.
The DCR’s proposed legislation mirrors the recommendations set forth in its report, including, but not limited to: mandatory harassment training and policies; mandatory reporting of harassment complaints to the DCR; eliminating affirmative defenses related to training; codifying the need to prove severe or pervasive conduct to establish an actionable harassment claim; and expansion of the statute of limitations to 3 years. Notably, the requirements for training, policies and reporting grant exclusive enforcement authority to the DCR instead of granting a private right of action.
The DCR’s proposal was introduced as identical legislation by Assemblywoman Annette Quijano in September 2020. (See Assembly Bill4637). On the other hand, Senator Weinberg’s proposed legislation differs from the DCR’s proposal in two fundamental respects that will lead to an oppressive litigation environment for New Jersey employers. Anthony’s testimony before the Senate Labor Committee emphasized those differences.
First, Senate Bill 3352 states that all “prior complaints of harassment or unlawful discriminatory practices at the same employer or relevant organization are discoverable and relevant [in NJLAD cases] regardless of whether the individual complaining of harassment, discrimination or retaliation witnessed or was aware of the prior complaints.” This language is clearly intended to strip our courts of their gatekeeping role in civil discovery and evidence. Notably, large businesses receive harassment complaints all over the country. This provision would make such complaints arising on the other side of the country, involving individuals a claimant never met, both discoverable and relevant.
By codifying the relevance of prior acts or wrongs, the bill tilts the scale heavily in favor of admissibility when applying evidence rules, such as N.J.R.E. 404(b) and 403. This would be highly prejudicial to businesses at trials of NJLAD claims. The bill would also certainly lead to widespread use of oppressive discovery demands by plaintiffs’ attorneys to force quick and large settlements, which benefits neither businesses acting in good faith nor credible victims seeking to tell their story in court. Arguably, this provision also violates separation of powers principles.
Second, Senate Bill 3352 outright eliminates the severe or pervasive conduct requirement to establish actionable harassment. This standard is derived from Title VII at the federal level, and has been applied by New Jersey courts for almost thirty (30) years. Our courts have applied this standard to thousands of workplace interactions, covering the entire spectrum of conduct. New Jersey businesses have formulated policies and training in accordance with this standard and the legal precedent it generated.
Senate Bill 3352 eliminates the standard and essentially replaces it with nothing. It merely states that conduct is defensible if its constitutes a petty slight or trivial inconvenience, which is already the case. This is obviously not a workable standard of review for harassment claims. It also diminishes the credibility of the NJLAD as a vehicle for societal change and victim recourse. Finally, since S3352 contains workplace training and policy requirements, it is completely absurd to also eliminate the established standard of review. How will employers train employees or develop policies if they no longer know what the law is?
But most important, on page 28 of its above-mentioned report, the DCR specifically recommended against eliminating this standard, stating: “[C]reating a completely new legal standard could cause confusion and lead to unintended consequences.”
Anthony forcefully argued these points to the Senate Labor Committee, and several senators on both sides of the aisle expressed serious concerns about the issues he raised. Notably, Senator Holly Schepisi, herself a lawyer and leader in addressing harassment and discrimination issues, stated the bill looks like it was “written by a plaintiffs’ attorney for the benefit of plaintiffs’ attorneys.” Despite the stated concerns of the committee members, the bill was still released from the committee on party lines.
Given the political realities in Trenton today, either the Assembly Bill or the Senate Bill will likely pass. While not ideal for a struggling business community, the DCR’s recommendations, as reflected in Assembly Bill 4637, are clearly preferable to the radical approach offered by Senate Bill 3352, outlined above. Accordingly, NJCJI has expressed its preference for the Legislature to advance Assembly Bill 4637, with some small tweaks.
For more information on NJCJI’s position on this issue, its written comments to the Senate Labor Committee can be found here. Anthony’s testimony can be found here at the 1:36:56 mark (1:19:14 left in audio). To discuss this bill or NJCJI’s advocacy against it, please feel free to contact Anthony via e-mail at firstname.lastname@example.org.