By Lía Fiol-Matta, Esq., Ty Hyderally, Esq.

Being forced to take sides, especially when pressured to say and do things we do not agree with, is certainly an uncomfortable situation to be in. When the one exerting the pressure is your employer, it makes things worse. Being drawn into a dispute between two quarreling sides is bad enough but the stakes are much higher if you are afraid of losing your livelihood. What to do? Fortunately, the law in New Jersey offers protections.  If your employer attempts to force you to take the employer’s side, in another employee’s discrimination lawsuit, and you refuse and are then retaliated against, you have rights!

Earlier this month, the Superior Court of New Jersey, Appellate Division, ruled in Rios v. Meadowlands Hospital Medical Center, Docket No. A-3846-18T1 (April 14, 2020), that the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”) not only prohibits employers from retaliating against an employee because he/she objected to an activity the employee reasonably believed violated the LAD, but also prohibits employers from retaliating against employees because they opposed an act that is forbidden by the LAD.

Emiliano Rios was an Emergency Medical Technician (“EMT”) who worked for Meadowlands Hospital Medical Center as the Supervisor of the Emergency Medical Services Department (“EMS”). In 2014, one of Rios’s coworkers, H. Bailey, filed a sexual harassment lawsuit against the hospital.  Rios was unaware that Bailey claimed to have been sexually harassed.

After Bailey filed her lawsuit, the Coordinator of EMS, R. Rusev, approached Rios to help the hospital defend itself.  He told Rios to be a “team player”, that the owner of the hospital expected Rios’ cooperation and directed Rios to seek a restraining order against Bailey even though Rios had no reason to do so.

Later, Rusev advised Rios that the hospital was considering promoting Rios to Assistant Director of EMS, but to receive the promotion, he had to “play ball,” and claim that Bailey had been giving him a “hard time.” Rusev said Rios had to help protect the hospital and assist the hospital in winning the lawsuit.  Rios responded that he was uncomfortable seeking the restraining order.

In another conversation, Rusev told Rios to claim Bailey created a hostile work environment for Rios and that he did not want to come to work because of her.  Rusev also instructed Rios to get other employees to submit written complaints about Bailey. Rios told Rusev he was uncomfortable with Rusev’s instructions, and the statements Rusev wanted him to make about Bailey were false.  He also refused to seek complaints about Bailey.  The hospital then retaliated against Rios by taking away some of his job duties and subsequently firing him.

Rios filed a lawsuit against the hospital, claiming it violated the LAD by retaliating against him because he refused to cooperate with the hospital in Bailey’s sexual harassment lawsuit. However, the trial court granted the hospital’s motion for summary judgment and dismissed the case because Rios did not know Bailey’s underlying lawsuit was a sexual harassment case, and could not have had a “good faith, reasonable basis for complaining about the workplace behavior” directed toward Bailey. Rios appealed.

The appellate court disagreed with the trial court, finding that Rios presented sufficient evidence that he refused defendant’s instructions that he seek a meritless restraining order against Bailey and make misrepresentations concerning her. The Court concluded that Rios “demonstrated he had a good faith and reasonable belief defendant’s requests constituted efforts by defendant to unlawfully retaliate against Bailey for the filing of her discrimination and harassment complaint.”

The LAD protects employees from reprisals taken in response to protected actions.    The statute prohibits reprisals because a person “filed a complaint,” but it also prohibits reprisals because a person “has opposed any practices or acts forbidden under” the LAD.  N.J.S.A. 10:5-12(d). The Appellate Division explained that Rios did not allege he was retaliated against for filing a discrimination complaint. Rather, he claimed he engaged in other protected conduct under the LAD. He claimed he was retaliated against because he “opposed . . . acts forbidden under” the LAD.  The Court accepted Rios’ facts as true for its analysis of the trial court’s disposition of the summary judgment motion and determined that the defendant employer attempted to retaliate against Bailey for filing her LAD complaint by its requests to Rios.

The Court concluded that Rios’ LAD complaint did not require that Bailey’s claim have a good faith basis or that Rios know the details and proofs of Bailey’s sexual harassment action.  What mattered was whether Rios had a good faith basis for his own actions of refusing to seek a baseless restraining order, make false statements about Bailey, and seek false complaints about her. The Court found that the defendant attempted to commit “an unlawful employment practice” in violation of the LAD and reversed the trial court’s order granting summary judgment.

Following the Rios decision, if your New Jersey employer tells you to lie to help it win a discrimination lawsuit against a coworker, and you have a good faith reason to believe your employer’s actions are unlawful, we encourage you to seek legal advice from an experienced employment law firm in order to protect your rights.

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