Whistleblowers reporting discrimination without naming the victim are protected

On July 17, 2013, the New Jersey Supreme Court, in Battaglia v. United Parcel Service, Inc., ruled that an employee who reports discrimination in the workplace does not have to identify a victim of the prejudice to be protected from retaliation. In order to understand this decision, however, some general background is needed.

An employee may usually be fired or disciplined at any time for any reason. This is known as the at-will doctrine. In the recent past, though, New Jersey has promulgated many exceptions to this rule, from two sources:

  • Courts, which made "common law protections"
  • The legislature, which enacted "statutory protections"

Common-law protections

New Jersey courts recognize that an employer may not discharge or demote an employee for a reason that violates a clear public policy, and an employee may sue in court when such a discharge or demotion takes place. In order to determine what constitutes "public policy", courts look to statutes, constitutional provisions, administrative regulations and judicial decisions. Some policies prohibit certain practices (for example, criminal laws prohibiting perjury). A violation would then occur when an employer terminates a worker who refuses to commits perjury (lying under oath in the court proceeding) when asked to do so by his supervisor at work, and then reports such an activity. Someone who reports such an activity is known as a "whistleblower".

Statutory protections

Under the New Jersey Conscientious Employee Protection Act (CEPA), an employee may not be discharged or demoted in retaliation for the following:

  • Disclosing, or threatening to disclose, an employment activity, policy or practice (including a discriminatory activity, policy or practice) that the employee reasonably believes is illegal, fraudulent or criminal.
  • Providing information to a public body conducting an investigation into an employer's violation of the law.

Battaglia v. United Parcel Service, Inc.

In Battaglia, a Flemington man was demoted by his employer, United Parcel Service, when he reported that a supervisor, in the presence of a group of male employees, made a series of vulgar, sexual comments about women. When the man filed a lawsuit for wrongful demotion, the jury found in his favor, but the court on appeal overturned the verdict because there were no women in the room who heard the comments.

The Supreme Court found in favor of the demoted person, stating "When an employee voices a complaint about behavior or activities in the workplace that he or she thinks are discriminatory, we do not demand that he or she accurately understand the nuances of the [law] . . . or that he or she be able to prove that there was an identifiable discriminatory impact upon someone of the requisite protected class. [If a complaint is] made in a good faith belief that the conduct complained of violates the [law] it suffices for purposes of pursuing a cause of action. We would ill serve those important purposes were we to demand that one who voices complaints . . . and who suffers retaliation as a consequence, also prove that there is a separate, identifiable victim of actual discrimination."

Conclusion

Whistleblower law covers many important activities that the everyday employee might very well encounter in the workplace, activities deemed important both in terms of public policy and in terms of civil and criminal protections. Because the law is evolving and complex, it is important to work with an experienced employment attorney who can best understand these complications and changes and provide you with the result you deserve.