Appellate Division Adopts Broad Definition of “Opposition” Under the NJLAD

LaFranco v. Avaya Inc., 2009 WL 2850747 (App. Div., September 8, 2009) – The Appellate Division has adopted the U.S. Supreme Court’s broad definition of “opposition” for purposes of determining whether an employee engaged in protected activity by opposing a practice under the New Jersey Law Against Discrimination (NJLAD). The plaintiff was terminated following the deterioration of his relationship with his boss after a conversation about outstanding commissions due him. Specifically, in response to the plaintiff’s inquiry about the money owed, the supervisor asked, “What are you, a Jew?” to which the plaintiff sharply responded, “Yeah I am.”

The court rejected the employer’s argument that the plaintiff failed to prove he was opposing a practice forbidden by the NJLAD because he “did nothing more than identify himself as a member of a protected class” in response to a supervisor’s “rhetorical question.” The court found, rather, that the comment constituted protected activity as it “was clearly made in opposition to [his supervisor’s] anti-Semitic remark.” Recognizing that no New Jersey authority defines what it means under the NJLAD to “oppose” a forbidden practice, the Appellate Division adopted the U.S. Supreme Court’s definition under the parallel opposition clause in Title VII, set forth in Crawford v. Metro Gov’t of Nashville & Davidson County, 129 S. Ct. 846 (2009). There, the Supreme Court denied that “opposition” requires active, consistent opposition, or even the initiation of a complaint, but can just as surely occur by a statement or refusal to follow an order, stating, “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”.  

Note: This article was published in the October 2009 issue of the New Jersey eAuthority.