Although a number of prior attempts to pass similar legislation have failed, a new bill, A4252, was introduced by New Jersey Assemblyman Michael Patrick Carrol (R-Morris) on October 20, 2016, which seeks to bar juries from awarding punitive damages, as well as noneconomic damages, against public entities and public employees. The bill is aimed at eliminating the ability to award such damages against public entities and public employees sued for violations of the New Jersey Law Against Discrimination (“LAD”) and New Jersey’s whistleblowing statute, the Conscientious Employee Protection Act (“CEPA”). The rationale behind this most recent attempt at superseding long-standing precedent permitting an award of punitive and noneconomic damages against public entities under the LAD and CEPA, is that taxpayers ultimately bear the cost of such damages and that they do not deter unlawful conduct. However, such rationale fails to consider the heightened standard applicable to an award of punitive damages, and the basis for an award of noneconomic damages against public entities and public employees, under the LAD and CEPA.
Over twenty years ago, the New Jersey Supreme Court in Abbamont v. Piscataway Board of Education, 138 N.J. 405 (1994), held that punitive damages are available against public entities and public employees under both the LAD and CEPA. However, unlike other damages available under those statutes, punitive damages are reserved for especially egregious conduct and may be awarded only in the event of actual participation by upper management or willful indifference. Id. at 425-433. Further, non-economic damages, e.g., for emotional distress or physical manifestations thereof, are not automatically awarded, but must be based upon credible testimony or other supporting evidence. Thus, the jury is not required to award non-economic and/or punitive damages in every case, but will make the determination of whether either type of damages are warranted, and how much to award, based upon the case before it.
The public policy underlying the LAD and CEPA is to eradicate unlawful discrimination and retaliation in the workplace. Eliminating a jury’s the ability to award damages commensurate with the egregious conduct of employers, public or private, and emotional impact of the discriminatory and/or retaliatory conduct upon the employee, will effectively destroy the deterrent goals of these important civil rights statutes. Rather, juries must be able to freely and liberally award the appropriate damages in each case to effectuate the broad remedial purposes and clear public policy of the LAD and CEPA.
By Francine Foner, Esq. and Ty Hyderally, Esq.
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