In Battaglia v UPS the Supreme Court of New Jersey handed employers a small victory in a decision that was largely employee friendly. Buried in a discussion of whistleblower and discrimination retaliation standards, is the Court’s decision that a plaintiff alleging emotional distress cannot recover for future emotional distress unless the plaintiff presents expert testimony demonstrating permanency of injury.
In Battaglia, the Supreme Court reviewed whether an employee could base a retaliation claim under the New Jersey Law Against Discrimination (“NJLAD”) upon his reporting of sexist comments about women that were not made in front of any women. In deciding in favor of the employee, the court reiterated the by now established case law that an plaintiff need not prove that there actually was discrimination, merely that an employee report practices that he or she reasonably believes violate the NJLAD. However, the Court made clear that where the supervisor used sexist language that demeaned women, even though it was never said in the presence of a woman and there was no evidence that any particular woman could demonstrate she was subjected to a hostile work environment, the mere use of the language could be a violation of the NJLAD. Since that was the case when Mr. Battaglia complained about this use of language, he was engaging in protected activity under the NJLAD.
Certainly, this decision significantly lowers the bar for an employee trying to assert a retaliation claim and we expect that employers will see a rise in such claims. The good news, which we are choosing to focus on, is that the Court has taken a large step toward curbing high emotional distress awards based upon nothing more than the testimony of the employee.
In New Jersey, an employee may recover emotional distress damages as a remedy under the NJLAD. These damages are usually based upon the self-serving testimony of the plaintiff without forcing the plaintiff to present any demonstrable medical evidence from an expert witness. Plaintiffs’ attorneys can probably quote off the top of their heads the citations for the decisions that say a plaintiff need not present expert testimony to establish emotional distress. At least now, management side attorneys can quote Battaglia to bar the recovery of future damages for emotional distress where there is no expert testimony.
It is a large victory for employers in a case that is also a big loss for employers. We’ll take ’em where we can get ’em.