Lead Opinion
delivered the opinion of the Court.
This case involves claims of hostile work environment and sexual harassment under New Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff filed a complaint against Bob Ciasulli (Ciasulli) and various of his wholly-owned corporations and their employees. Prior to trial, all defendants were dismissed except for Ciasulli, Bob Ciasulli Auto Group (Auto Group), and Bob Ciasulli’s Mack Auto Mall, Inc. (Mack Auto Mall). At trial, the court dismissed plaintiffs claim for emotional distress damages and the claim against Ciasulli individually. The jury found Mack Auto Mall liable for sexual harassment in the work
We granted certification, 178 N.J. 29,
I.
Plaintiff began working for Mack Auto Mall in late July 1994 as a finance and insurance manager. Plaintiffs immediate supervisor, Kelly Bragg, reported to Patrick Grimaldi, the general manager of Mack Auto Mall. Plaintiff and Bragg shared office space located near the sales floor. Plaintiff worked at Mack Auto Mall until July 1995, when she left, allegedly because of sexual harassment in the workplace. Nevertheless, plaintiff returned to the job in August 1995 and remained until April 1996 when she again resigned because of the asserted sexual harassment.
At trial, plaintiff described the extensive and pervasive sexual harassment that she endured from a group of particularly offensive male employees. At various times, those employees would refer to women in demeaning gutter slang that we need not repeat here. Plaintiff testified that one employee would leave pornographic material on his desk, draw sexually explicit pictures on deal envelopes, open his legs and describe his sexual organ in detail, and discuss his sexual escapades with various women, some of whom were very young. Another employee regularly com
Plaintiff stated that Grimaldi heard much of the abusive conduct, but made no effort to stop it. On one occasion he made a sexual comment when plaintiff dropped something in front of him. Also, Grimaldi once told plaintiff that she should loosen her blouse to help sell a warranty to a customer.
Plaintiff testified that the constant abuse made her feel extremely uncomfortable and led her to quit in July 1995. However, she returned a short time later because she needed the job and because Bragg, who was also subjected to sexual harassment, assured her that the situation would improve. Plaintiff’s testimony of sexual harassment was corroborated by various witnesses, including Bragg and two other coworkers.
Plaintiff stated that she was constantly embarrassed by the disgusting comments and conduct of the male employees. She explained that she often wanted to crawl under her desk. Her frustration with the abusive work environment reached a point where she regularly cried on her way home from work. Plaintiff eventually quit in April 1996.
Plaintiff presented limited evidence of Ciasulli’s direct involvement with the management of Mack Auto Mall. She testified that Ciasulli held monthly meetings attended by all sales personnel. Bragg testified that she considered Ciasulli her supervisor, and that she called him directly when her immediate supervisor could not resolve a problem. A former manager at Mack Auto Mall also testified that Ciasulli once told him to fire a salesperson following allegations of sexual harassment because the victim had threatened to file a complaint with the Attorney General’s office.
At the close of plaintiff’s case, the trial court dismissed plaintiffs emotional distress claim. The court ruled that the elements
Ciasulli also testified. He stated that he was the sole owner of the Auto Group dealerships and that there was a direct employee hotline through which employees could call his office. He added that if a corporate officer could not resolve a problem, an employee could come to him for a final resolution. He remarked that other female employees had filed sexual harassment claims, noting that their embellished complaints were suitable for a Hollywood script.
At the close of all the evidence, the trial court dismissed the complaint against Ciasulli, individually, and Auto Group. The case was submitted to the jury solely against plaintiffs employer, Mack Auto Mall. In answer to special interrogatories, the jury found that plaintiff was the victim of sexual harassment in the workplace, but that she suffered no economic loss. The court concluded that plaintiff was entitled to attorney fees as a prevailing party because the jury found in plaintiffs favor on the sexual harassment and hostile workplace claims.
Plaintiff appealed the dismissals of her emotional distress damages claim and of her complaint against Auto Group. All three defendants cross-appealed from the order awarding counsel fees. The Appellate Division reversed the order dismissing the emotional distress damages and the complaint against Ciasulli individually. Tarr, supra, 360 N.J.Super. at 280-81,
II.
The resolution of the emotional distress damages claim requires us to consider whether the LAD permits a lower evidentiary threshold for recovery of such damages than is necessary to
A.
We begin by reviewing the elements of a common law cause of action for intentional infliction of emotional distress. To prevail on such a claim “[t]he plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe.” Buckley v. Trenton Saving Fund Soc’y, 111 N.J. 355, 366,
Beyond a cause of action for emotional distress, our courts have long recognized emotional distress damages as a component of various intentional torts and breach of contract claims. See, e.g., Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 416,
B.
The Legislature amended the LAD to authorize recovery of emotional distress damages for discrimination claims. L. 1990, c. 12, § 1. The LAD now mandates courts to construe its provisions broadly:
The Legislature further finds that because of discrimination, people suffer personal hardships, and the State suffers a grievous harm. The personal hardships include: 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 [A]ct. Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages. The Legislature intends that such damages be available to all persons protected by this [A]ct and that this [A]ct shall be liberally construed in combination with other protections available under the laws of this State.
[N.J.S.A. 10:5-3 (emphasis added).]
A post-amendment case permitted emotional distress damages under the LAD in the absence of expert testimony. Rendine v. Pantzer, 276 N.J.Super. 398,
Although defendant’s discriminatory treatment did not cause plaintiffs to relocate or suffer illness or homelessness, both plaintiffs described in detail their inconvenience and economic loss, physical and emotional stress, anxiety in searching for reemployment, uncertainty, career and family disruption and other adjustment problems. Plaintiffs’ problems seem precisely the type for which the Legislature intended compensation.
[Id. at 440,648 A.2d 223 .]
This Court affirmed the damage award, similarly relying on the 1990 amendment to the LAD authorizing emotional distress damages, and rejected the defendant’s contention that expert testimony or independent corroborative evidence was necessary to support the award of emotional distress damages. Rendine, supra, 141 N.J. at 312,
C.
Federal authorities have reached the same conclusion under federal statutes. The Fifth Circuit Court of Appeals upheld an emotional distress award to a Title VII pregnancy discrimination plaintiff that was based solely on the plaintiffs testimony that her employer’s discrimination caused her low self-esteem, serious hardship in procuring daycare for her newborn child, anxiety attacks, stress, and sleeplessness. Migis v. Pearle Vision, Inc.,
D.
The preceding cases illustrate that claims for emotional distress of varying degrees have been recognized where a wrong is willful. A cause of action asserting discrimination is willful rather than negligent. Gray, supra, 110 N.J.Super. at 315,
We have declared that the purpose of the LAD is “the eradication ‘of the cancer of discrimination.’ ” Fuchilla v. Layman, 109 N.J. 319, 334,
To suffer humiliation, embarrassment and indignity is by definition to suffer emotional distress. Emotional distress actually suffered in that manner by the victim of proscribed discrimination is compensable without corroborative proof, permanency of response, or other physical or psychological symptoms rendering the emotional distress severe or substantial. The quantum of compensation, which may be nominal in the terms we have described, is dependent upon the relevant factors we have identified including duration of the discriminatory conduct, its public nature, and its content and may be enhanced by such additional proofs of indicia of suffering as plaintiff may adduce. We add only that the duration and the content of the conduct asserted here clearly, in our view, warrants an award in some amount. No reasonable woman can be expected to have endured the constant and prolonged barrage of the extraordinarily demeaning and degrading sexual harassment to which this plaintiff was subjected without humiliation, embarrassment and loss of personal dignity and that was the emotional distress to which she testified. We leave the question of quantum to the fact finder.
[Tarr, supra, 360 N.J.Super, at 276-77,822 A.2d 647 .]
Our dissenting colleagues invoke Taylor v. Metzger, 152 N.J. 490,
In sum, we are satisfied that compensatory damages for emotional distress, including humiliation and indignity resulting from willful discriminatory conduct, are remedies that require a far less stringent standard of proof than that required for a tort-based emotional distress cause of action. We hold that in discrimination cases, which by definition involve willful conduct, the victim may recover all natural consequences of that wrongful conduct, including emotional distress and mental anguish damages arising out of embarrassment, humiliation, and other intangible injuries. Accordingly, we affirm that portion of the Appellate Division’s judgment remanding for a new trial on damages.
III.
We turn now to address whether there was sufficient evidence to submit the issue of Ciasulli’s individual liability to plaintiff for sexual harassment. The Appellate Division concluded that there was sufficient evidence that Ciasulli was negligent in implementing workplace programs and policies to prevent sexual harassment. Id. at 279-80,
N.J.S.A. 10:5-12a prohibits unlawful employment practices and unlawful discrimination by an employer. An employer “includes all persons as defined in subsection a ____ unless otherwise specifically exempt under another section of [the LAD], and
We have yet to address the meaning of “aiding and abetting” under the LAD. Because the words “aid” and “abet” are not defined in the Act, the general principles of statutory construction apply. First, in interpreting the statute, we look to the “ordinary and well understood meaning” of the words therein. Safeway Trails, Inc. v. Furman, 41 N.J. 467, 478,
Here, “aid” and “abet” are included with the series of words “incite,” “compel,” and “coerce.” The common dictionary definitions of these words prove helpful. Among other things, “aid” means “[t]o give help or assistance to,” Webster’s II New College Dictionary 23 (rev. updated ed.2001); “abet” means “[t]o incite, encourage, or assist, esp. in wrongdoing,” id. at 2; “incite” means “[t]o provoke to action,” id. at 560; “compel” means “to force, drive, or constrain,” id. at 229; and “coerce” means “[t]o force to act or think in a given way by pressure, threats, or intimidation,” id. at 217. All of the words used are similar in meaning and require active and purposeful conduct.
The Third Circuit Court of Appeals predicted that we would define the terms “aiding” and “abetting” consistent with the
Section 876(b) of the Restatement imposes concert liability on an individual if he or she “knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.” We agree that the Restatement provides the proper standard by which to define the terms “aid” or “abet” under the LAD. Also, the Restatement definition is consistent with the common usage of those terms. Thus, in order to hold an employee liable as an aider or abettor, a plaintiff must show that “ ‘(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.’ ” Hurley, supra,
With respect to that determination, the comments to section 876 provide a list of five factors, relied on by the Hurley court, to assess whether a defendant provides “substantial assistance” to the principal violator. Those factors are: (1) the nature of the act encouraged, (2) the amount of assistance given by the supervisor, (3) whether the supervisor was present at the time of the asserted harassment, (4) the supervisor’s relations to the others, and (5) the state of mind of the supervisor. Restatement (Second) of Torts, supra, § 876(b) comment d; Hurley, supra,
IV.
In light of our remand for a new trial on damages, although we need not decide whether a plaintiff may be considered a “prevailing party” where the jury finds plaintiff was the victim of sexual harassment but does not award damages, for purposes of completeness and guidance in future cases we add the following.
N.J.S.A. 10:5-27.1 provides that “the prevailing party may be awarded a reasonable attorney’s fee as part of the cost.” We have cited with approval the federal view that a prevailing party is one who succeeds “ ‘on any significant issue in litigation [that] achieves some of the benefit the parties sought in bringing suit.’ ” Szczepanski v. Newcomb Med. Ctr., 141 N.J. 346, 355,
The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement. Otherwise the judgment or settlement cannot be said to “affec[t] the behavior of the defendant toward the plaintiff.” Only under these circumstances can civil rights litigation effect “the material alteration of the legal relationship of the parties” and thereby transform the plaintiff into a prevailing party. In short, a plaintiff "prevails” when actual relief on the merits of his [or her] claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.
[Id. at 111-12, 113 S.Ct. at 573, 121 L.Ed.2d at 503 (internal citations omitted) (first alteration in original).]
The Court held that a party who receives only nominal damages is still deemed to be a prevailing party in the context of awarding attorney’s fees under 42 U.S.C.A § 1988. Id. at 113, 113 S.Ct. at 574,
We are persuaded by the reasoning of the United States Supreme Court and hold that a plaintiff who is awarded some affirmative relief by way of an enforceable judgment against
V.
We affirm that part of the judgment of the Appellate Division that remanded to the trial court for a new trial on damages. We reverse the judgment imposing individual liability upon Ciasulli and reverse and remand for reconsideration of the award of attorney’s fees.
Concurrence Opinion
concurring in part and dissenting in part.
This appeal requires us yet again to interpret the Law Against Discrimination, N.J.S.A. 10:5-1 to -49(LAD). Specifically, we must determine whether the LAD carries its own standard of proof for an award of compensatory damages for emotional distress caused by sexual harassment in the workplace. In my view, such a LAD claimant must demonstrate entitlement to damages for infliction of emotional distress caused by sexual harassment under the proof requirements set forth in our decision in Taylor v. Metzger, 152 N.J. 490,
I.
The cause of action for intentional infliction of emotional distress, which we first recognized as part of our common law in Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 544 A.2d
Our expansion of Buckley in Taylor was manifest;
In my view, the majority’s decision renders Taylor, which postdated the 1990 LAD amendments that the majority and the Appellate Division find to be so persuasive, a nullity. In Taylor, Justice Handler painstakingly analyzed the circumstances in which a plaintiff brings both a claim of discrimination under the LAD and a common law claim for intentional infliction of emotional distress, and both claims arise from the same discriminatory conduct. It is curious that our Court would have gone to such lengths to canvass decisions from around the country concerning claims of intentional infliction of emotional distress based on discrimination if one of the very causes of action then before it, a discrimination claim under the LAD, subsumed the entire analysis. The Court’s careful analysis in Taylor is now inoperative in that the majority holds that the LAD authorizes a standard for obtaining compensatory damages for emotional distress that is far below that articulated in Taylor. As demonstrated below, this case is indistinguishable from, and should be controlled by, our holding in Taylor.
II.
Plaintiff’s seven-count Complaint included three counts against Bob Ciasulli Mack Auto Mall, Inc. (Mack): Count I for hostile work environment created by sexual harassment and discrimination, in violation of the LAD; Count II for constructive discharge based on sexual harassment and discrimination, in violation of the LAD; and Count VII for intentional infliction of emotional dis
Before trial, Mack filed a motion for summary judgment to dismiss Count VII for common law intentional infliction of emotional distress, and to compel discovery concerning the nature of plaintiffs asserted emotional trauma. Plaintiff did not oppose the motion to dismiss Count VII.
The ensuing jury trial spanned nearly two weeks. During trial, there was ample testimony concerning the outrageously hostile and discriminatory environment at Mack’s place of business, which both the majority, ante at 74-76,
testimony respecting her response ... was not extensive. Although she apparent ly had mental health care after leaving Mack ..., she chose not to offer expert testimony. She testified only to her acute embarrassment and humiliation, [caused by one co-worker’s] remarks in the presence of persons not employed by the dealership, [that] made her turn ‘beet red’ and ‘want to crawl under my desk.’ [find].
Plaintiff also testified that she would cry “ ‘all the way home from being frustrated, from being intimidated, from feeling that you
At the close of plaintiffs ease-in-chief, Mack moved to strike all evidence of plaintiffs emotional distress from the jury’s consideration on the LAD claims. The trial court granted Mack’s motion, ruling from the bench, in pertinent part, as follows:
But I think you're talking about recovering in a ease like this for emotional distress, I think that you need more than a temporary upsetment. And certainly if you’re trying to recover for long-term medically diagnosed emotional injury or psyche injury, that that’s obviously something that requires an expert opinion, and that’s not here.
But the cases also talk about, for example, the emotional distress that is naturally attendant to somebody who suffers an injury. That’s something the jury can consider. In this particular case the allegation is that the plaintiff—or the plaintiff testified that on occasion she would cry as a result of the treatment that she received at work, and I don’t know that that really even rises to the level of being the type of injury that in the absence of expert testimony which would then indicate some other type of treatment, that the jury is free to assess an award.
The jury returned a verdict finding that plaintiff was the victim of sexual harassment, including “that the working environment was intimidating, hostile and abusive.” However, the jury did not award any compensatory damages to plaintiff, based on its determination that she suffered no past or future lost earnings as a result of defendant’s sexual harassment. Therefore, no punitive damages were awarded. Tarr, supra, 360 N.J.Super. at 267,
In a motion for a new trial pursuant to Rule 4:49-1(a), plaintiff again raised the issue of compensatory damages for emotional distress, asserting that 1990 amendments to the LAD created a
[T]he [1990] amendments ... I interpret pretty clearly as not expanding the types of damages that somebody can have, but basically recognizing that an employee would have damages that might reasonably flow from an act of discrimination that could be compensable and that could be the subject of compensatory damages. What are the purposes of compensatory damages? Compensatory damages are intended to make a litigant whole for a loss, no more, no less. Compensatory damages are not intended to punish a litigant for the wrongdoing but rather to make a party whole. Really, the plaintiff did not testify as to any other types of loss.
* * * *
I guess the question is whether or not—I think the amendments because they use the term, “physical and emotional distress,” and in some cases, “severe emotional trauma,” that they are talking about a level that goes beyond just a temporary upsetment. That was the term that I used. Granted, we may not be talking about something that requires a showing of medical treatment or medication in order to meet the emotional distress things. By analogy, I would say that in a personal injury action emotional distress standing alone with nothing else is generally not compensable. Emotional distress attendant to other factors like an emotional distress that one endures as a natural consequence of an injury would be an element of compensatory damages because in order to reconstruct the plaintiff, in effect, before the harm is done, you’re recompensing [him or her] for a loss. In that case, the loss of their emotional distress. But, really, the plaintiff in this ease didn’t really go into any detail as to whether or not her emotional distress, if any, was caused by a frustration as the result of the job or whether it was as to other factors, or whether it rose to the level of being any type of recognized level of emotional distress that we recognized in the law. I don’t think that when the Legislature amended the law in 1990 that it [in]tended to reduce the bar and say that litigants in [LAD] cases were going to be treated differently than other litigants in asserting common law claims founded upon emotional distress. That was why I found that there really was no testimony in the case to support a claim for emotional distress.
* * * *
The Legislature never intended to create a new form of damages not recognized in common law, but [it] did intend to codify the availability of damages that were normally available to the plaintiff as a function of common law in a personal injury type of action, tort or contract. The reason is that you have to remember why they did what they did in 1990, and that was to respond to the Shaner[ v. Horizon Bancorp., 116 N.J. 433,561 A.2d 1130 (1989)] decision which raised, in effect,*93 almost like as an afterthought the question of whether or not damages that are recognized at common law should be the prime focus of [the LAD].
So I’m not saying that emotional distress damages have to be pi-oven by expert testimony, although that would be preferable, or that the plaintiff has to show that she sought treatment or anything for it. But she has to testify as to something that is related to the incident in question and it has to be something more than just sort of a passing problem. And that’s what happened in this case was that she made a passing reference to crying in the ear and there was basically no testimony to indicate that that was related to the incident in question or to other problems or that it was substantial, that it was significant or that it caused her any continuing emotional distress.
The Appellate Division reversed the trial court on the issue of compensatory damages for emotional distress by relying on Gray v. Serruto Builders, Inc., 110 N.J.Super. 297, 316-17,
III.
Persons seeking redress under the LAD either may file a complaint (1) with the Division or (2) in the Superior Court of New Jersey, by jury trial if requested. N.J.S.A. 10:5-13. Pursuant to the LAD, “[a]ll remedies available in common law tort actions shall be available to prevailing parties. These remedies are in addition to any provided by this act or any other statute.” Ibid. (emphasis added). Those two sentences mandate that for LAD
A.
We turn first to the legislative history of the LAD to examine whether the Legislature intended the disputed language in N.J.S.A. 10:5-13 to apply a standard of proof lower than that which the common law requires for an award of compensatory damages for emotional distress caused by discriminatory conduct. When the LAD was enacted in 1945, an action under the statute could be brought only before the Division. In 1979, amendments to the LAD authorized, “[t]he right to bring judicial action ás an alternative to administrative relief.” L. 1979, c. 404. In Shaner, supra, we analyzed the impact that the 1979 amendments to the LAD had on causes of action and remedies available under the statute. 116 N.J. at 437-46,
We characterized our courts’ powers under the LAD as largely coextensive with those vested in the Division. Id. at 440, 561 A.2d
Almost immediately thereafter, the Legislature amended the LAD to overrule Shaner. Bipartisan sponsors advanced an amendatory bill that added a right to jury trial for LAD actions, as well as the currently disputed language to N.J.S.A. 10:5-13. L. 1990, c. 12, § 2. In addition, the bill inserted a paragraph in the declarations section of the LAD, N.J.S.A 10:5-3, that listed certain harms traditionally compensable in our common law of tort. See L. 1990, c. 12, § 1.
The Assembly Judiciary, Law and Public Safety Committee Statement on the Assembly Bill Substitute for Assembly Bill Nos. 2872,2118 and 2228, provided as follows:
In Shaner v. Horizon Bancorp, 116 N.J. 433,561 A.2d 1130 (1989), the New Jersey Supreme Court ruled that a plaintiff who brought an action under the “Law Against Discrimination”, P.L.1945, c. 169 (C. 10:5-1 et seq.) (LAD) was not entitled to jury trial. This bill would amend the LAD to grant a plaintiff the right to a jury trial. This bill would also add language to the findings section of the LAD listing the hardships (i.e. economic loss, emotional trauma) which victims of discrimination might suffer and language indicating that the LAD is to be liberally construed so that all common law remedies, including compensatory and punitive damages, are available to persons protected by the LAD.
[Assembly Judiciary, Law and Public Safety Committee, Statement for Assembly Bill Nos. 2872, 2118 and 2228.]
That statement encapsulates the twin purposes of the 1990 amendments: (1) to overrule our holding in Shaner that LAD claimants
B.
N.J.S.A. 10:5-13 ties the LAD remedies to those available in the common law, in that the section authorizes that “[a]ll remedies available in common-law tort actions shall be available to prevailing plaintiffs,” which are “in addition to any provided by this act or any other statute.” The common law of tort allows the recovery of nominal, compensatory, and punitive damages, Restatement (Second) of Torts §§ 903, 907, 908 (1979), including both pecuniary and nonpecuniary compensatory damages. Id. §§ 905-06. N.J.S.A. 10:5-13 expresses the legislative desire to allow claimants to recover those common law tort remedies—nominal damages, pecuniary and nonpecuniary compensatory damages, and punitive damages—under the LAD. There is no mention in N.J.S.A. 10:5-13, or elsewhere in the LAD, that the “common law tort actions” giving rise to such remedies should be altered.
The declarations section of the LAD, N.J.S.A 10:5-3, does not support a contrary conclusion. The last paragraph of that section lists several types of harms, which may accompany discrimination, including “physical and emotional loss” and “severe emotional trauma.” Ibid. It then states: “Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages.” Ibid, (emphasis added). The Appellate Division concluded that the phrase “emotional stress” in N.J.S.A. 10:5-3 evidenced a legislative intent to lower the standard for obtaining compensatory damages based on emotional distress, one purportedly endorsed by Zahorian and Gray. Tarr, supra, 360 N.J.Super. at 273-75,
One must construe the phrase “emotional distress” out of context to conclude that the 1990 LAD amendments meant to apply a standard lower than the common law threshold for obtaining compensatory damages based on emotional distress caused by discrimination, which is none other than the Taylor standard. The majority’s contrary conclusion appears to me to be at odds with a reasonable construction of the actual language of the Legislature and lacks support in the legislative history of the LAD.
C.
Furthermore, I must part company with my colleagues concerning the import of Gray and Zahorian in this matter.
Nominal damages, however, are not what plaintiff seeks here, and that is not what the majority seemingly now will allow. Plaintiffs claim is for compensatory damages and all additional relief that is predicated on such an award. An award of nominal damages, as opposed to compensatory damages, automatically forecloses the possibility of awarding punitive damages. N.J.S.A. 2A:15-5.13c. Holding that “compensatory” damages for emotional distress are now available under the LAD solely based on the violation of a constitutional or legal right, without any showing of severe emotional distress as by the common law required for an emotional distress claim, and as Taylor, supra, underscored, is antithetical to that important limitation in the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17. As Justice Hall admonished, a legislative intent to revamp such “an important public policy matter ... is so extremely doubtful that I am convinced the power
IV.
In my view, the Legislature did not intend to lower the threshold for recovering common-law remedies when such remedies are sought under the LAD, nor can that be reasonably inferred from the LAD. Therefore, in this matter I would require plaintiff to satisfy the modified four-prong test for obtaining compensatory damages for emotional distress that arises from discriminatory conduct, as set forth in Taylor, supra, 152 N.J. at 509-21,
Specifically, in respect of the subjective severity of plaintiffs alleged emotional distress, the trial court correctly observed that the LAD does not require: (1) “a showing of medical treatment or medication in order to meet the emotional distress things,” (2) “that emotional distress damages have to be proven by expert testimony, although that would be preferable,” or (3) “that the plaintiff has to show that she sought treatment or anything for it,” which is consistent with our observation in Rendine, supra, 141 N.J. at 313,
has to be something more than just sort or a passing problem. And that’s what happened in this case was that [plaintiff] made a passing reference to crying in the car and there was basically no testimony to indicate that that was related to the incident in question or to other problems or that it was substantial, that it was significant or that it caused her any continuing emotional distress.
(Emphasis added.)
Plaintiff’s proofs differ substantially with those offered by the plaintiff in Taylor. There, the plaintiffs supervisor, who was a white male, referred to the plaintiff, who was an African-American female, as a “jungle bunny” in the presence of others, eliciting laughter from one listener. Taylor, supra, 152 N.J. at 495,
Y.
In conclusion, I would affirm the trial court’s dismissal of plaintiffs claim for compensatory damages based on emotional distress. That said, I join in the Court’s reversal of the Appellate Division judgment that had imposed individual liability on defen
Justice VERNIERO joins in this opinion.
For affirmance in part/reversal in part/remandment—Chief Justice PORITZ and Justices ZAZZALI, ALBIN and WALLACE—4.
For concurrence in partldissent in part—Justices VERNIERO and LaVECCHIA—2.
Notes
Buckley, supra, set forth a four-prong test for establishing a cause of action for intentional infliction of emotional distress: (1) intentional conduct; (2) outrageous conduct; (3) proximate cause; and (4) severe emotional distress. 111 N.J. at 366,
First, we "conclude[dj that power dynamics of the workplace [could] contribute to the outrageousness of defendant’s conduct." Taylor, supra, 152 N.J. at 511,
The trial court compelled plaintiff to produce for in camera review documents relating to plaintiff's medical and social worker visits to which she adverted when deposed, and which might bear on her allegation of emotional distress.
The bracketed material comes from plaintiff’s trial testimony.
Declarations in a statutory preamble are not considered operative terms; however, they may act as an intrinsic aid to interpretation if a statute's operative terms are ambiguous. Blackman v. Iles, 4 N.J. 82, 91,
As previously stated, under that test, to recover compensatory damages for emotional distress, a plaintiff must demonstrate: (1) intentional conduct, id. at 513-14,
Although the plaintiff in Taylor, supra, adduced evidence that she consulted a psychiatrist, and that the psychiatrist diagnosed her with post-traumatic stress /disorder, the Court did not hold that such expert evidence was a prerequisite to a claim for intentional infliction of emotional distress based on discrimination as a matter of law. 152 N.J. at 514-15,