Q. An employee has filed a verified complaint with the New Jersey Division on Civil Rights, alleging race discrimination for failure to promote, a violation of the New Jersey Law Against Discrimination (NJLAD). The administrative proceedings have commenced, and the matter is still pending before the Division on Civil Rights.
Yesterday, my company received another complaint that the employee filed in New Jersey Superior Court. The complaint alleged identical facts and claims of race discrimination under the NJLAD. Can the employee sue us in the New Jersey Superior Court for the same alleged discrimination still pending before the Division on Civil Rights?
A. Generally, no. While an NJLAD claim is pending in the Division on Civil Rights, the division has exclusive jurisdiction of the matter. The same holds true for NJLAD claims pending in New Jersey state courts. To remove the division’s exclusive jurisdiction, the employee would need to obtain a right to sue letter from the division or voluntarily withdraw the claim from the division prior to any final determination.
You should know, however, the New Jersey Supreme Court has concluded that equitable principles may allow a plaintiff to file a court action while a division complaint is pending. The exclusive jurisdiction of NJLAD matters is designed to prevent parties from having “a second bite at the apple.”
The Supreme Court allowed the state court action because the division was not actively investigating the complaint, not expending resources and had not rendered an administrative ruling. Also, the defendant at that point had not expended additional resources, conducted any discovery and would not be unfairly disadvantaged by being required to litigate the matter in state court. The Supreme Court, in that case, later requested that the pending administrative proceeding be terminated.
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