“Continuing Violation Theory” Cannot Be Used to “Sweep In” an Otherwise Time-Barred Discrete Retaliatory Act Under the NJLAD

Roa v. LAFE, 2010 WL 114284 (N.J., January 14, 2010) – In a mixed bag ruling for employers, the New Jersey Supreme Court has reversed the Appellate Division’s July 2008 decision that permitted a plaintiff to extend the New Jersey Law Against Discrimination (NJLAD) statute of limitations on a discrete, time-barred discriminatory act by classifying it as part of a “continuing violation.” (For more on the lower court’s decision, see the August 2008 issue of the New Jersey eAuthority.) The court also held, however, that the NJLAD’s anti-retaliation provision applies to post-termination retaliation, even if the employer’s retaliatory conduct is not employment-related.

The plaintiff was terminated on October 3, 2003, but learned on November 11 that his employer had canceled his health insurance as of September 30, 2003, resulting in significant unpaid medical bills. The plaintiff filed suit alleging retaliatory discharge and post-discharge retaliation.

The Supreme Court upheld the Appellate Division’s determination, based upon Burlington Northern v. White, 548 U.S. 53 (2006), that the insurance cancellation was actionable even though it was unrelated to the workplace and even though it caused the plaintiff no harm, as it was corrected. Adopting Burlington Northern’s holding, the court held that an employer’s conduct is actionable if materially adverse, which means it must dissuade a reasonable employee from making or supporting a charge of discrimination.

However, it reversed the appellate court’s conclusion that the retaliatory discharge was actionable as part of a continuing violation. The Supreme Court stated the doctrine does not permit “the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable.”