In general, to establish a viable claim for discrimination or retaliation under the New Jersey Law Against Discrimination, an individual must suffer an adverse employment action.  The most common example of an adverse employment action is an employment termination.  However, there are less obvious adverse employment actions, such as demotions and potentially, written warnings or reprimands. In Prager v. Joyce Honda, Inc., 447 N.J. Super. 124 (App. Div. 2016), the New Jersey Appellate Division examined when circumstances dictate that the issuance of written warnings constitute an adverse employment action under the New Jersey Law Against Discrimination in the context of a retaliation claim asserted by the plaintiff when the plaintiff received the written warnings following complaints about unlawful conduct in the workplace.

To have actionable retaliatory conduct, courts examine whether “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  See Roa v. Roa, 200 N.J. 555, 575 (2011).  The United States Supreme Court has determined that “the anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”  See Burlington Northern & Sante Fe Railway v. White, 548 U.S. 53, 67 (2006).

Applying that standard in Prager, the Appellate Division concluded that the written warnings issued to plaintiff did not establish an adverse employment action because plaintiff was unable to prove tangible injury or harm given that she quit her job the day after receiving the warnings.  However, the Appellate Division stated, “[t]o be clear, we accept that written warnings might, in some circumstances, be materially adverse to an employee – in a formal system of progressive discipline for instance.”  In light of this ruling, it is important for employees as well as employers to understand the ramifications of issuing written warnings to employees shortly following complaints made by employees about actions that may be protected under the New Jersey Law Against Discrimination.

If you have any questions about adverse employment actions under the New Jersey Law Against Discrimination, please contact the Law Office of Frank A. Custode, LLC.