After Calabotta: Certain Out-of-State Employees Protected by the New Jersey Law Against Discrimination

In the recent case David F. Calabotta v. Phibro Animal Health Corp., et al., Smith Eibeler employment attorney Kathryn McClure, Esq., along with co-counsel, Mary Ann Sedey secured a substantial victory for employees, both inside and outside of New Jersey. Through its opinion, the Appellate Division reaffirmed New Jersey’s commitment to the eradication of workplace discrimination and the expansive reach of the New Jersey Law Against Discrimination.

The case provides clarification to federal and state courts that it is inappropriate to impose a “bright-line rule” that the Law Against Discrimination only applies where an individual was employed within the State of New Jersey. Rather, a case-by-case analysis must be performed, with attention paid to the particular facts and circumstances at issue in each given case. Further, the Appellate Division again approved of a claim for associational discrimination under the Law Against Discrimination, despite the absence of explicit legislative approval of such a claim.

David Calabotta, the plaintiff in the Calabotta case, was not a member of a protected class himself, but rather brought a claim for associational discrimination under the Law Against Discrimination. David’s claim was premised on his relationship with his wife, who was diagnosed with breast cancer and thus was disabled within the meaning of the Law Against Discrimination. David brought his claim after his employer refused to consider him for a promotion and then subsequently terminated his employment after his wife became disabled. David alleged that his employer took those actions against him because of his association with his disabled wife.

The facts outlined above would form the basis for a classic claim under the Law Against Discrimination if not for one additional fact: at all times relevant to his claim, and indeed to his employment with Phibro in general, David lived and worked in Illinois. Notwithstanding this fact, the promotion David sought was in New Jersey, Phibro is a New Jersey company, and David alleged that the decisions to discriminate against him were made by individuals located in New Jersey. Through his complaint, David proceeded under the theory that these connections to New Jersey were sufficient to bring him within the protections of the Law Against Discrimination. His employer argued, conversely, that because David was never a New Jersey employee, he was barred from bringing a claim under the Law Against Discrimination.

This was not the first time New Jersey courts have been faced with an out-of-state plaintiff seeking protections under the Law Against Discrimination, nor was it the first time that New Jersey courts were faced with the question of if and when it is appropriate to give extra-territorial application to the Law Against Discrimination. However, the caselaw on the issue is relatively sparse, and the result in each case dependent on the particular facts at issue therein. Relying heavily on one of those past cases (Buccilli v. Timby, Brown & Timby(App. Div. 1995)), the trial court dismissed David’s case, holding “‘[t]he [Law Against Discrimination] does not apply to employees whose employment is based outside of New Jersey.”

The Appellate Division disagreed and reversed the trial court’s dismissal of David’s claims, concluding that the Law Against Discrimination “can extend in appropriate circumstances to plaintiffs who reside or work outside of the state.” The court stressed that a case-by-case analysis is required to determine when such extension would be appropriate. Ultimately, the question courts must resolve is whether New Jersey’s relationship to the plaintiff’s claim is significant enough to warrant application of the Law Against Discrimination

The court’s conclusions were rooted in “the [Law Against Discrimination’s] text and extensive legislative history” which revealed “no expression of legislative intent to limit the statute’s protections . . . to those employees who perform all of their employment functions in New Jersey.” The court further held that “the Legislature did not intend to confine the scope of the statute’s protections solely to plaintiffs and claimants who reside in this State.” Finally, the court held that “we are persuaded that our Legislature has expressed an intention to allow certain nonresident plaintiffs to receive the benefits and protections of the [Law Against Discrimination]. Such an intention about the [Law Against Discrimination’s] breadth may be gleaned from both the words of the statute and the expansive policies that underpin it.”

The Appellate Division further explained that the trial court’s reliance on Buccilli went too far. While they did not overrule that prior opinion, the court clarified that a case-by-case analysis must be performed in each case and that broad rules should not be applied in factually distinct scenarios. So, while the Buccilli result conformed with the case-by-case analysis required, the Appellate Division instructed that the case “should not be misread to impose a bright-line choice-of-law principle that all employment discrimination claims must be governed by the law of the state where a plaintiff exclusively or principally worked.”

The importance and impact of the Calabotta decision extends beyond the specific factual situation facing the court there. As quoted above, the court stated that the “Legislature has expressed an intention to allow certain nonresident plaintiffs to receive benefits and protections of the NJLAD.” The court did not limit this holding to the facts before them, for example by defining the class as “certain nonresident plaintiff employees of New Jersey-based companies” or “certain nonresident plaintiff employees who applied for a job in New Jersey.” The court simply said, “certain nonresident plaintiffs.”

Through this broad language, the court makes it abundantly clear that a case-by-case analysis must be performed whenever a nonresident plaintiff seeks protections under the Law Against Discrimination. There is no factual threshold that a plaintiff must show before a court should consider their claim, there is no bright-line rule. Rather, courts must consider the particular facts and circumstances involved in any potential claim and determine if New Jersey’s relationship to the claim is substantial enough to warrant extension of the Law Against Discrimination to that claim. This, according to the Appellate Division, is necessary in order to fulfill the broad remedial purposes of the Law Against Discrimination. As the court noted, “the Legislature’s activity [in amending the LAD] has been in one direction” – to strengthen and expand protections for employees.

This case is a significant win for employees who become subjected to discrimination, harassment or retaliation that is prohibited under the New Jersey Law Against Discrimination.