New Jersey Employment Lawyer Blog
The New Jersey Division on Civil Rights recently modified its proposed regulation regarding disparate impact claims based on a comment that I submitted earlier this year.
On June 3, 2024 the DCR initially proposed the new regulation to addresses disparate impact claims under the New Jersey Law Against Discrimination (“LAD”). A disparate impact claims is when a practice or policy that appears to be neutral on its face has a disproportionate negative impact on people in a particular legally-protected class, such as based on their age, race, national origin, gender, disability or sexual orientation.
The DCR’s proposed regulation would make it clear that the LAD prohibits practices and policies that have a disparate impact on members of a legally protected class even if it was not intended to be discriminatory. In other words, it is form of unlawful discrimination.
The regulation sets forth rules that apply to disparate impact claims based on previous court opinions. Overall, it confirms that a practice or policy that results in a disparate impact on members of a legally-protected class violates the LAD unless it is “necessary to achieve a substantial, legitimate, nondiscriminatory interest.”
On June 5, 2024, after reviewing the initial proposed regulation, I submitted an email to the DCR which says the following:
I am a New Jersey employment lawyer who primarily represents employees. In my initial review of the new proposed disparate impact regulation, I noticed they refer only to “Complainant” and “Respondent,” and the definition of “Complainant” is limited to people who have filed a verified Complaint alleging discrimination. However, most claims under the LAD are filed in court and most complaints in court are not verified. In addition, the use of the word “discrimination” could be read to suggest the regulations do not apply to retaliation claims. Accordingly, I suggest that the final regulation should define “Complainant” to mean “any person filing a complaint alleging a violation of the Act” to make it clear it applies to individuals who file claims in court or arbitration, as well as to retaliation claims.
On November 18, 2024, the DCR published its Notice of Proposed Substantial Changes Upon Adoption to Rules Pertaining to Disparate Impact Discrimination in the New Jersey Register. In that document, after summarizing my comment, the DCR responded to it as follows:
RESPONSE: The Division agrees that the definition in the proposed new rules unintentionally limits complainants to those who file verified complaints with the Division. The Division is proposing to define the term “complainant” as “any person filing a complaint alleging unlawful discrimination pursuant to the Act” to clarify that the new proposed rules apply to all people who file complaints that allege LAD violations, including those who file complaints in court or arbitration. The definition the Division is proposing includes people filing allegations of retaliation. By using the term “unlawful discrimination” in the definition, the definition includes people filing complaints alleging the unlawful practices and acts specified at N.J.S.A. 10:5-12. The LAD prohibits retaliation at N.J.S.A. 10:5-12(d), meaning people filing retaliation complaints are included.
Accordingly, the DCR’s revised the definition of “complainant” in the proposed regulation so it now clearly includes individuals who pursue claims under the LAD in court or in arbitration.
The proposed amended regulation is subject to a new comment period that is open until January 17, 2025.
If you have experienced unlawful discrimination, harassment or retaliation, Rabner Baumgart Ben-Asher & Nirenberg, P.C. can help. Please feel free to call us at (201) 777-2250 to schedule an initial consultation with one of our New Jersey employment lawyers. We are located in Bergen County, New Jersey, and represent workers and other individuals throughout the state.