Lead Opinion
We affirm the judgment of the Appellate Division substantially for the reasons expressed in Judge Skillman’s opinion below. Cedeno v. Montclair State Univ., 319 N.J.Super. 148,
After being discharged from his position as Director of Purchasing, plaintiff sued his former employer, Montclair State University
The Law Division denied the motion, concluding that after-acquired evidence is irrelevant during the liability stage of a discrimination case. The Appellate Division reversed. In so doing, the court found that evidence that plaintiff was forever barred from government employment was of paramount concern. We agree.
The legislative intent of the Forfeiture Statute is “‘to preclude those who have once violated the public trust from [having] a second opportunity.’ ” Pastore v. County of Essex, 237 N.J.Super. 371, 377,
The Legislature has created this “seemingly harsh” sanction of absolute disqualification from government employment to “eodif[y] a long-standing policy against retention of offenders in government service.” State v. Lee, 258 N.J.Super. 313, 317,
[i]t is the public policy of this State that “person[s] holding any public office, position or employment” must avoid committing serious criminal acts or offenses which involve or touch upon their governmental duties, or sacrifice their right to governmental employment. This is a harsh response to a problem serious enough to justify the harshness. The purpose is to prevent miscreants and corrupt officials from again holding office.
[Id. at 378-79,568 A.2d 81 (citations omitted).]
That said, we also recognize the important public policies of the LAD and CEPA and the need to construe the statutes liberally to achieve those policies. Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 418, 431,
In view of the quality of proofs in this action, we believe that whatever value may be achieved by permitting plaintiffs case to proceed to trial is outweighed by the policy against allowing that same person to obtain public employment after having been convicted of bribery. Contrary to our dissenting colleagues, we do not believe that a different result is required by McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 879,
Accordingly, we agree with the Appellate Division that, on the record presented, “the pursuit of a discrimination claim against the State by a convicted felon who is disqualified from public employment is so unusual a circumstance that the denial of any relief to such a plaintiff does not create a realistic danger of undermining the effective enforcement of the LAD or CEPA.” Cedeno, supra, 319 N.J.Super. at 162,
Dissenting Opinion
dissenting,
I would reverse on the basis of the dissenting opinion in the Appellate Division. 319 N.J.Super. 148, 163-173,
In Nicosia v. Wakefern Food Corp., 136 N.J. 401, 418-19,
The gist of McKennon is that employers cannot escape liability for employment discrimination if, at the time of the adverse action, non-discriminatory reasons existed but could not have motivated the employer because they were then unknown. First, the Court emphasized the common purposes of all federal anti-discrimination statutes: to deter unlawful employment practices and to compensate victims for resultant injuries. The deterrent purpose would be undermined if employers knew they could escape liability for admitted discrimination merely by digging into work histories for windfall evidence of misconduct or dishonesty. Second, the Court identified the private, non-government litigant as “a vital element” in all these statutes. The potential litigant would be unduly discouraged if every discrimination claim carried the risk of total defeat based on subsequent disclosure and discovery of embarrassing evidence about the plaintiff unrelated to what motivated the employer.
*481 [William L. Kandel, Age Discrimination: Recent Decisions by Appellate Courts under the Age Discrimination in Employment Act Through Midr-1999, 616 PLI Lit 7, 70 (1999).]
Ordinarily, application of the McKennon balancing test serves “to limit a plaintiffs recovery from the date of the unlawful discharge to the date that the information is uncovered. It is insufficient to show that the misconduct committed by the plaintiff was a terminable offense. The defendant must affirmatively show that plaintiff would have been terminated.” Grady B. Murdock, et al., Developments in Title VII and Section 1981, 614 PLI/Lit 419, 449 (1999). Thus, a claimant in after-acquired evidence cases will ordinarily be entitled to compensation for back pay and emotional distress, but not to front pay and reinstatement (future lost wages). This result was foreshadowed in Massey v. Trump’s Castle Hotel and Casino, 828 F.Supp. 314 (D.N.J.1993).
A 1990 amendment to the LAD, L. 1990, c. 12, § 1, specifically authorized recovery of emotional distress damages for discrimination claims and the statement accompanying the amendment emphasized that the LAD is to be liberally construed so that all common law remedies are available to persons protected by the LAD.
All that is required in a tangible employment action
In this case, plaintiff has alleged that his contract was not renewed as a result of his employer’s intentional discrimination and retaliation. The harassment that he experienced caused him to collapse at work and suffer a near heart attack. Plaintiff contends that his supervisor was aware of his anxiety attack and attempted to reprimand him both during and after the event.
I do agree with the Court that this is the exceedingly rare case in which a claimant may be denied back pay from date of discharge rather than the date of discovery of the wrongful conduct. Because the grant of back pay from the date of discharge would conflict with the paramount public policy expressed in N.J.S.A. 2C:51-2, the worker was not eligible for the pay and did not work for it. To sum up,
[c]ourts must tread carefully in applying the after-acquired-evidence doctrine to discrimination claims. As noted in Mardell v. Harleysville Life Ins. Co., supra, 31 F.3d.at pages 1236-1237, “The prospect of a defendant’s thorough inquiry into the details of a plaintiffs pre and post-hiring conduct ... may chill the enthusiasm and frequency with which employment discrimination claims are pursued, even in cases where the victim of discrimination has nothing to hide, let alone cases where the potential plaintiff is not entirely blameless. Placed in context of the general pervasiveness of resume fraud and employee misconduct, the likely consequence of the widespread exploitation of after-acquired evidence will be underenforcement of [antidiscrimination statutes], and consequently underdeterrence of discriminatory employment practices.”
[65 Cal.App.4th at 844, 849,77 Cal.Rptr.2d 12 , 21 (footnotes omitted).]
That result would be strongly inconsistent with public policy of New Jersey.
Like LAD, CEPA promotes a strong public policy of the State. “We view this legislation as a reaffirmation of this State’s repugnance to an employer’s retaliation against an employee who has done nothing more than assert statutory rights and protections and a recognition by the Legislature of a preexisting common-law tort cause of action for such retaliatory discharge.” “In New Jersey we are deeply committed to the principle that an employer’s right to discharge an employee carries a correlative duty to protect his freedom to decline to perform an act that would constitute a violation of a clear mandate of public policy.”
[Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431-32,650 A.2d 958 (1994) (internal citations omitted).]
We recently reviewed a case in which an employer was alleged to have denied an employee a promotion because of the employee’s race. Spencer v. Bristol-Meyers Squibb Co. 156 N.J. 455,
Justice LONG joins in this opinion.
For affirmance — Chief Justice PORITZ and Justices GARIBALDI, STEIN, COLEMAN and VERNIERO — 5.
For reversal — Justices O’HERN and LONG — 2.
Notes
Under N.J.S.A. 10:5-3, the Legislature permitted common law remedies for the personal hardships from which a victim of discrimination might suffer. The Act recites these "personal hardships”: "economic loss; time loss; physical and emotional stress; and in some cases severe emotional trauma, illness, homelessness or other irreparable harm resulting from the strain of employment controversies; relocation, search and moving difficulties; anxiety caused by lack of information, uncertainty, and resultant planning difficulty; career, education, family and social disruption; and adjustment problems, which particularly impact on those protected by this act.”
See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (explaining that the requirement of severe and pervasive harassment is necessary to establish a claim of hostile working environment, but is not a requirement for establishing a claim of discrimination involving a tangible employment action, such as discharge, dismissal, or denial of promotion).