Discrimination & Retaliation FAQs

What is employment discrimination?

Employment discrimination occurs when an employee or group of employees is/are treated less favorably than others in the terms and conditions of their employment because they are in a protected class. Protected classes include race, color, gender, age, disability, national origin, pregnancy, affectional or sexual orientation, and other categories or traits, as applicable under state and/or federal law. If you feel you have been the victim of employment discrimination, you should contact an employment discrimination attorney in NJ to obtain an understanding of your rights and options. Some individuals hesitate to do so, thinking that they do not have direct “proof” of employment discrimination. However, employment discrimination need not be proven by direct evidence; it may also be established by circumstantial evidence.

There are two types of discrimination, (1) disparate treatment discrimination and (2) disparate impact discrimination. Disparate treatment discrimination occurs when there is an intention, whether direct or circumstantial, on the part of the employer to discriminate. Disparate impact discrimination occurs when there exists a policy or a practice that, on its face, is not discriminatory, but in practice, has a discriminatory impact on a protected class.

What is retaliation under the law?

Retaliation occurs when an employer takes an adverse action against an employee in the terms and conditions of employment because that employee engaged in “protected activity.” One form of “protected activity” is what is known as “blowing the whistle.” When an employee complains about, objects to, or refuses to participate in discrimination or some other conduct that the employee reasonably believes to be a violation of the law (including fraud and safety violations), or that the employee reasonably believes runs contrary to public policy, he or she engages in protected activity or “whistleblowing.” The same is true if the employee discloses or threatens to disclose such an activity to a supervisor or a public body, or if the employee provides information or testimony about such an activity to a public body.

If an employer terminates, demotes, or harasses an employee, or takes other adverse employment actions against an employee, because that employee engaged in protected activity, this constitutes unlawful retaliation in New Jersey. In addition to whistleblowing, this may occur where someone seeks to enforce his or her civil rights or where even where an employee seeks to support a fellow employee in the assertion of that employee’s civil rights. With retaliation cases, timing is often very important, so you should contact a NJ retaliation lawyer promptly, if you believe you are a victim of retaliation.

Am I a whistleblower?

Whether you are a whistleblower depends on whether you have engaged in “protected activity” under state or federal law. In NJ, engaging in “protected activity” usually involves complaining about, objecting to, or refusing to participate in, conduct that you reasonably believe to be unlawful or contrary to public policy. It can also take the form of reporting or speaking out against employment discrimination. There are a number of federal and state statutes that have whistleblower retaliation provisions, including the Sarbanes-Oxley Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the New Jersey Family Leave Act, and the False Claims Act, to name a few. Determining whether you are a whistleblower likely requires a consultation with an employment attorney because different statutes have different requirements in order to gain whistleblower status.