New Jersey’s anti-Discrimination law has long reach

You may think that the New Jersey Law Against Discrimination (NJLAD) applies only to your role as an employer. You would be wrong. In fact, the NJLAD may affect other aspects of your organization’s business activities.

As the following case shows, even refusing to do business with another company can lead to discrimination litigation if that company is contracting on behalf of people otherwise protected from discrimination by the NJLAD.

Advice: That’s why it’s important to share the scope of the law with all managers, including those who are responsible for contracting with outside firms and people.

Recent case: Bubbles n’ bows, LLC is a company that specializes in creating imprintable invitations and greeting cards. It has an ongoing contract with Fey Press to produce these paper products.

Bubbles n’ bows asked Fey Press to print two lines of cards—one focusing on traditional lifestyles and another on alternative lifestyles. Fey refused to print the second series, arguing that doing so might harm its reputation because of the content.

Bubbles n’ bows sued, alleging that Fey’s decision amounted to discrimination against the company’s customers, some of whom are members of protected classes covered by the NJLAD. The printer argued that it couldn’t be liable to the card company’s customers, and that the card company couldn’t sue it directly for alleged discrimination.

The court disagreed. It concluded that if Bubbles n’ bows could bring in customers who wanted alternative cards produced, the card company could sue on their behalf. The card company also could sue because of its association with members of protected classes. The NJLAD makes it illegal to discriminate against those who associate with nontraditional families, for example.

What’s worse, the court also said employees who aid and abet in illegal discrimination under the NJLAD may be personally liable for discrimination. Thus, whoever helped make the decision not to accept the print order for the alternative lifestyle cards can be sued, as well as the corporate entity. (Bubbles N’ Bows, LLC, v. Fey Publishing, et al., No. 06-5391, DC NJ, 2007)

‘Aiding and abetting’ under the NJLAD

The NJLAD outlaws “aiding and abetting” discrimination in addition to direct discrimination. Aiding and abetting is defined as “knowingly giving substantial assistance or encouragement to the unlawful conduct of an employer.” Five factors are considered:

  1. The nature of the act encouraged
  2. The amount of assistance given
  3. Whether the “aider and abettor” was present at the time of the discrimination
  4. His or her relationship to the alleged primary discriminator
  5. His or her state of mind

Clearly, the law covers HR professionals who recommend or participate in a discriminatory decision. For example, providing a rubber stamp to a discharge based on race or sexual orientation might amount to aiding and abetting discrimination. To protect yourself, always insist on an independent investigation.