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The New Jersey Senate is considering a bill that, if passed, will significantly amend the New Jersey Law Against Discrimination (NJLAD). In short, the proposed amendments would increase the burden on employers to prevent discrimination and harassment and eliminate the barriers to claims for employees. Whether or not the proposed bill will be signed into law remains to be seen. In the meantime, the best way for workers to protect their rights is to consult with an experienced employment lawyer.
Potential Changes to the NJLAD on the Horizon
Under the bill, the Law Against Discrimination will be amended to include the following provisions:
- Mandatory anti-discrimination policies — The bill would require all businesses to establish written anti-discrimination and anti-harassment policies — including but not limited to sexual harassment — customized based on the employer’s industry and size, based on its number of employees
- Mandatory discrimination and harassment training — The bill mandates all employers to provide training on unlawful discrimination and harassment to non-supervisory employees and supervisory employees within 90 days of hire or promotion, and at least every two years thereafter.
- Recordkeeping and reporting requirements –Employers will be required to maintain records (e.g. electronic) of all employees who complete required training and provide these records to the Division of Civil Rights (DCR) upon request. The bill would also require businesses with at least 50 employees to report internal complaints of discrimination and/or harassment to the DCR on an annual basis.
How Would the Amended NJLAD Help Workers?
The bill would codify state court rulings that prohibit discrimination and harassment against:
- Individuals perceived to be members of a protected class
- Individuals associated with members of a protected class
- Individuals in transition from one protected class to another
The bill also eliminates the state’s so-called workers’ compensation bar by allowing workers to recover damages under the NJLAD even for harm that is covered under state workers’ comp law. Most importantly, the bill would lower the plaintiff’s burden of proof of unlawful harassment and discrimination.
In particular, victims of harassment would no longer need to demonstrate that the unlawful harassment is severe or pervasive nor demonstrate any loss of a tangible job benefit to establish a claim for unlawful harassment. Finally, the bill provides employers with an affirmative defense that the complained discriminatory conduct does not rise above what a reasonable person would consider petty slights or trivial inconveniences.
Next Steps
The Assembly previously considered a similar measure to amend the NJAD and the two chambers will need to come up with legislation that meets the approval of the DCR and Governor Murphy, who has expressed an interest in expanding the law. Until then, if you have been the victim of discrimination or harassment in the workplace, talk to an employment lawyer.