language used in NJSA 10:5-12.8(a) "a", "or"- RETALIATION
NDA and NDC ruled against Public Policy May 7, 2024
A law that bars confidentiality agreements in cases involving harassment, retaliation, discrimination applies to non-disparagement agreements, the court ruled. (Photo: Amanda Brown for New Jersey Monitor)
A state ban on non-disclosure agreements in cases involving harassment, retaliation, or discrimination can extend to non-disparagement agreements, the New Jersey Supreme Court ruled Tuesday.
The high court’s unanimous decision hands a win to former Neptune Township police sergeant Christine Savage, who entered into a non-disparagement agreement when settling workplace claims against the town’s police department. Neptune moved to enforce the agreement when she later told NBC New York the department remained a “good old boys club.”
“Survivors of discrimination, retaliation, and harassment now have a legal right to tell their story — a right that cannot be taken away from them by a settlement agreement,” Chief Justice Stuart Rabner wrote in Tuesday’s ruling.
Savage’s lawyer, Donald F. Burke Jr., said the ruling affirms “the rights of victims of discrimination to speak out.”
“Silencing victims has long been a method of perpetuating discrimination. The Legislature recognized this when it amended the Law Against Discrimination to prohibit non-disclosure agreements. The Supreme Court rejected the argument that there is a difference between a non-disparagement clause and a non-disclosure clause when they both can be used to silence victims. The Supreme Court once again has affirmed its commitment to combating discrimination in New Jersey,” he said.
At the root of the case are 2019 amendments to New Jersey’s Law Against Discrimination that declare settlement agreements unenforceable if their purpose or effect is “concealing the details relating to a claim of discrimination, retaliation, or harassment.”
Savage argued those amendments applied to her agreement with Neptune. A trial court ruled against her, saying that provision did not extend to Savage’s non-disparagement agreement because the statute refers specifically to non-disclosure agreements. That judge ordered the former sergeant to remain silent.
An appellate panel agreed the statute did not extend to non-disparagement agreements but voided the gag order imposed by the lower court, finding Savage’s statements about the department’s past conduct were not barred by the agreement.
The Supreme Court took a different tack, ruling the discrimination law’s prohibition does indeed apply to non-disparagement agreements. The reference to non-disclosure agreements that lower courts relied on was just shorthand for settlements that conceal details of a discrimination, harassment, or retaliation claim, the justices found.
“The phrase plainly draws its meaning from the words it refers back to — not from outside sources like Black’s Law Dictionary,” Rabner wrote, referring to the reference the Appellate Court relied on for its decision.
The court’s opinion notes that the statute does not bar non-disparagement agreements in all circumstances. They could still be used to prevent disparagement unrelated to a discrimination, retaliation, or harassment, and such an agreement could bar a worker from calling their boss a lush or a tax cheat, for example.
In the eyes of the prime sponsor of the 2019 amendments, the court’s ruling falls in line with legislators’ intent.
“I am delighted that we have a Supreme Court who understood the legislative intent and, most important, understood what’s needed to protect the freedom of all of our citizens,” said former Sen. Loretta Weinberg (D-Bergen), the sponsor.
The Appellate court found that CEPA should be construed the same as the LAD. Donelson v. DuPont Chambers Works, 2010 WL 624024 (App. Div., February 24, 2010)
Broad Reading - "A Claim of Retaliation"
The Conscientious Employee Protection Act (CEPA) prohibits New Jersey employers from taking adverse actions "retaliation" against employees who disclose illegal, fraudulent or unsafe activities, policies or practices they learn of at their jobs.
CEPA supplements other New Jersey laws protecting workers, such as the NJ Law Against Discrimination (NJLAD)
Certain language in section
NJSA10:5-12.8 also supports a broad reading of the statute. Section 12.8 bars the concealment of details “relating to” a claim of discrimination, retaliation, or harassment. Ibid. (emphasis added).
“The ordinary meaning of [the phrase ‘relating to’] is a broad one -- to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quotation and quotation marks omitted).
Section 12.8, in addition, protects the disclosure of “details relating to a claim of discrimination, retaliation, or harassment.” (emphasis added).
The word “a” does not distinguish between claims that give rise to a settlement agreement and others that do not. Nor does it distinguish among past, present, or future claims. The statute encompasses them all. See Villa v. Short, 195 N.J. 15, 26 (2008) (holding that the phrase “an insured” in an insurance policy refers to “all insureds”); see also Allstate Ins. Co. v. Stamp, 588 A.2d 363, 365 (N.H. 1991) (finding that the “use of the indefinite article ‘an,’ rather than the definite ‘the,’ before ‘insured’ is a clear reference to any insured”).
For all of those reasons, we find that the meaning of section 12.8 turns on what the law says, not on any labels applied to it, and that the statute has a broad reach.
NJ supreme court ruling
