Generalized harassment isn’t considered retaliation under CEPA
Good news for employers: Workers who claim they have been retaliated against for whistle-blowing under the New Jersey Conscientious Employee Protection Act (CEPA) have to show more than generalized displeasure with their organizations’ actions. Mere harassment isn’t enough—the employer has to take concrete action such as firing, demoting or denying promotions.
The case: Jacqueline Smith is a police officer for East Greenwich who was passed over for many promotions through the years. She filed an EEOC complaint in which she alleged sex discrimination. Later, she was disciplined for various infractions and missed out on a promotion. Also, the police chief changed some of the promotion criteria to give more weight to his recommendation and less weight to test scores.
Smith sued under CEPA, claiming that she had been retaliated against by losing out on promotions and by being snubbed and generally mistreated by the chief, her male co-workers and subordinates. She theorized they didn’t like female police officers.
The court first concluded that filing an EEOC complaint could be whistle-blowing under CEPA. But it also said that Smith’s promotion complaint was unrelated to the EEOC complaint, and that CEPA doesn’t protect employees from general harassment in the workplace, even if that harassment is linked to the protected whistle-blowing. Because comments and negative attitudes about female cops aren’t adverse employment actions such as discharge or demotion, she didn’t have a CEPA case. (Smith v. Township of East Greenwich, No. 05-4219, DC NJ, 2007)