SENATE, No. 345
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Senator BAER
An Act concerning discrimination, amending and supplementing the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. The amendatory and supplementary provisions of this act, P.L. , c. (C. ) (now pending before the Legislature as this bill), shall not be construed to require, permit or encourage an employer to adopt hiring or promotion quotas on the basis of race, color, religion, sex, marital status, age, disability, or national origin, and the use of such quotas shall be deemed an unlawful employment practice under this act, provided that those provisions shall not be construed to affect court-ordered remedies, affirmative action, or conciliation agreements otherwise in accordance with the law.
b. It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion to adjust test scores of, or use different cut-off scores for, a written employment test on the basis of the race, color, religion, sex, marital status, age, disability, or national origin of individual test takers, provided that this subsection shall not apply to a respondent seeking to comply with a court order aimed at remedying past discrimination. Nothing in this subsection shall be construed to authorize the use of any test which is not in conformity with the amendatory and supplementary provisions of this act, P.L. , c. (C. ) (now pending before the Legislature as this bill) or the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.).
2. (New section) As used in this act:
a. "Act" means the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.).
b. "Complaining party" means any person who may bring an action or proceeding under this act.
c. "Demonstrates" means meets the burdens of production and persuasion.
d. "Group of employment practices" means a combination of employment practices or an overall employment process.
e. "Required by business necessity" means the practice or group of practices must bear a substantial and manifest relationship to the requirements for effective job performance.
f. "Requirements for effective job performance" may include, in addition to effective performance of the actual work activities, factors which bear on such performance, such as attendance, punctuality, and not engaging in misconduct or insubordination.
g. "Respondent" means an employer, employment agency, labor organization, or joint labor-management committee.
3. (New section) Notwithstanding any other provision of law to the contrary, in any action alleging discrimination in employment, an unlawful employment practice shall be established if a complaining party demonstrates that discrimination on account of race, color, religion, sex, marital status, age, disability, atypical hereditary cellular or blood trait, liability for service in the Armed Forces of the United States, or national origin was a contributing factor for any employment practice even if that practice was also motivated by other factors.
4. (New section) a. (1) An unlawful employment practice based on disparate impact is established under this section if a complaining party demonstrates that a disparate impact on the basis of race, color, religion, sex, marital status, age, handicap, or national origin results from an employment practice or group of employment practices, and the respondent fails to demonstrate that such practice or group of practices is required by business necessity, except that an employment practice or group of practices demonstrated to be required by business necessity shall be unlawful if the complaining party demonstrates that another available practice or group of practices with less disparate impact, which difference is more than merely negligible, would serve as well.
(2) If a complaining party demonstrates that a disparate impact results from a group of employment practices, such party shall be required after discovery to demonstrate which specific practice or practices within the group results in disparate impact unless the court finds that the complaining party after diligent effort cannot identify, from records or other information of the respondent reasonably available, through discovery or other means, which specific practice or practices contributed to the disparate impact.
(3) If the respondent demonstrates that a specific employment practice within a group of employment practices does not contribute in a meaningful way to the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.
b. A demonstration that an employment practice is required by business necessity may be used as a defense only against a claim under this section.
c. The mere existence of a statistical imbalance in an employer's workforce on account of race, color, religion, sex, marital status, age, handicap, or national origin, is not alone sufficient to establish a prima facie case of disparate impact violation. The mere existence of a statistical balance in an employer's workforce on account of race, color, religion, sex, marital status, age, handicap, or national origin is not alone sufficient to establish a defense against an allegation of unlawful employment practice in a case of disparate impact.
d. For purposes of this section, a respondent may rely upon relative qualifications or skills as determined by relative performance or degree of success on a selection factor, criterion, or procedure; provided, that if such reliance results in a disparate impact based on race, color, religion, sex, marital status, age, handicap, or national origin, such reliance must be demonstrated by the respondent to be required by business necessity.
e. Notwithstanding any other provision of this section, a rule barring the employment of an individual who currently and knowingly uses or possesses an illegal drug as defined in the "New Jersey Controlled Dangerous Substances Act", P.L.1970, c.226 (C.24:21-1 et seq.), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the "New Jersey Controlled Dangerous Substances Act" or any other provision of law, shall be considered an unlawful employment practice under this section only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, marital status, age, handicap, or national origin.
f. The limitations of coverage for small businesses set forth in Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. §2000e(b), shall also be applied to exclude small employers who otherwise would be covered under the disparate impact provisions of the "Law Against Discrimination".
5. (New section) In accordance with the Attorney General's responsibility pursuant to subsection g. of section 8 of P.L.1945, c.169 (C.10:5-8) to act on rules and regulations to carry out the provisions of this act, the Attorney General shall adopt rules and regulations to assure that:
a. Disclosures authorized by section 12 of P.L.1945, c.169 (C.10:5-13) shall cover all appropriate information and shall follow fair, practical and reasonable procedures.
b. Rights under this act shall only be waived knowingly, voluntarily and retrospectively.
c. Awards of attorney fees and expenses shall be adequate to assure that complainants, regardless of economic circumstances, have dependable access to competent counsel to enforce the "Law Against Discrimination", P.L.1945, c.169 (C.10:5-1 et seq.).
d. Record keeping obligations of New Jersey employers shall be summarized, explained and set forth in as integrated, simplified and clear manner as possible. This subsection shall not be construed to require the imposition upon employers of additional record keeping obligations.
6. Section 5 of P.L.1945, c.169 (C.10:5-5) is amended to read as follows:
5. As used in this act, unless a different meaning clearly appears from the context:
a. "Person" includes one or more individuals, partnerships, associations, organizations, labor organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and fiduciaries.
b. "Employment agency" includes any person undertaking to procure employees or opportunities for others to work.
c. "Labor organization" includes any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining, or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection in connection with employment.
d. "Unlawful employment practice" and "unlawful discrimination" include only those unlawful practices and acts specified in section 11 of this act.
e. "Employer" includes all persons as defined in subsection a. of this section unless otherwise specifically exempt under another section of this act, and includes the State, any political or civil subdivision thereof, and all public officers, agencies, boards or bodies.
f. "Employee" does not include any individual employed in the domestic service of any person.
g. "Liability for service in the Armed Forces of the United States" means subject to being ordered as an individual or member of an organized unit into active service in the Armed Forces of the United States by reason of membership in the National Guard, naval militia or a reserve component of the Armed Forces of the United States, or subject to being inducted into such armed forces through a system of national selective service.
h. "Division" means the "Division on Civil Rights" created by this act.
i. "Attorney General" means the Attorney General of the State of New Jersey or his representative or designee.
j. "Commission" means the Commission on Civil Rights created by this act.
k. "Director" means the Director of the Division on Civil Rights.
l. "A place of public accommodation" shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall; any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed; nor shall anything herein contained be construed to bar any private secondary or post secondary school from using in good faith criteria other than race, creed, color, national origin, ancestry or affectional or sexual orientation, ancestry, in the admission of students.
m. "A publicly assisted housing accommodation" shall include all housing built with public funds or public assistance pursuant to P.L.1949, c.300, P.L.1941, c.213, P.L.1944, c.169, P.L.1949, c.303, P.L.1938, c.19, P.L.1938, c.20, P.L.1946, c.52, and P.L.1949, c.184, and all housing financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof.
n. The term "real property" includes real estate, lands, tenements and hereditaments, corporeal and incorporeal, and leaseholds, provided, however, that, except as to publicly assisted housing accommodations, the provisions of this act shall not apply to the rental: (1) of a single apartment or flat in a two-family dwelling, the other occupancy unit of which is occupied by the owner as a residence or the household of the owner's family at the time of such rental; or (2) of a room or rooms to another person or persons by the owner or occupant of a one-family dwelling occupied by the owner or occupant as a residence or the household of the owner's or occupant's family at the time of such rental. Nothing herein contained shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, in the sale, lease or rental of real property, from limiting admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained. Nor does any provision under this act regarding discrimination on the basis of familial status apply with respect to housing for older persons.
o. "Real estate broker" includes a person, firm or corporation who, for a fee, commission or other valuable consideration, or by reason of promise or reasonable expectation thereof, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase, or rental of real estate or an interest therein, or collects or offers or attempts to collect rent for the use of real estate, or solicits for prospective purchasers or assists or directs in the procuring of prospects or the negotiation or closing of any transaction which does or is contemplated to result in the sale, exchange, leasing, renting or auctioning of any real estate, or negotiates, or offers or attempts or agrees to negotiate a loan secured or to be secured by mortgage or other encumbrance upon or transfer of any real estate for others; or any person who, for pecuniary gain or expectation of pecuniary gain conducts a public or private competitive sale of lands or any interest in lands. In the sale of lots, the term "real estate broker" shall also include any person, partnership, association or corporation employed by or on behalf of the owner or owners of lots or other parcels of real estate, at a stated salary, or upon a commission, or upon a salary and commission or otherwise, to sell such real estate, or any parts thereof, in lots or other parcels, and who shall sell or exchange, or offer or attempt or agree to negotiate the sale or exchange, of any such lot or parcel of real estate.
p. "Real estate salesperson" includes any person who, for compensation, valuable consideration or commission, or other thing of value, or by reason of a promise or reasonable expectation thereof, is employed by and operates under the supervision of a licensed real estate broker to sell or offer to sell, buy or offer to buy or negotiate the purchase, sale or exchange of real estate, or offers or attempts to negotiate a loan secured or to be secured by a mortgage or other encumbrance upon or transfer of real estate, or to lease or rent, or offer to lease or rent any real estate for others, or to collect rents for the use of real estate, or to solicit for prospective purchasers or lessees of real estate, or who is employed by a licensed real estate broker to sell or offer to sell lots or other parcels of real estate, at a stated salary, or upon a commission, or upon a salary and commission, or otherwise to sell real estate, or any parts thereof, in lots or other parcels.
q. "Handicapped" means suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or from any mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.
r. "Blind person" means any individual whose central visual acuity does not exceed 20/200 in the better eye with correcting lens or whose visual acuity is better than 20/200 if accompanied by a limit to the field of vision in the better eye to such a degree that its widest diameter subtends an angle of no greater than 20 degrees.
s. "Guide dog" means a dog used to assist deaf persons or which is fitted with a special harness so as to be suitable as an aid to the mobility of a blind person, and is used by a blind person who has satisfactorily completed a specific course of training in the use of such a dog, and has been trained by an organization generally recognized by agencies involved in the rehabilitation of the blind or deaf as reputable and competent to provide dogs with training of this type.
t. "Guide or service dog trainer" means any person who is employed by an organization generally recognized by agencies involved in the rehabilitation of the blind, handicapped or deaf as reputable and competent to provide dogs with training, and who is actually involved in the training process.
u. "Housing accommodation" means any publicly assisted housing accommodation or any real property, or portion thereof, which is used or occupied, or is intended, arranged, or designed to be used or occupied, as the home, residence or sleeping place of one or more persons, but shall not include any single family residence the occupants of which rent, lease, or furnish for compensation not more than one room therein.
v. "Public facility" means any place of public accommodation and any street, highway, sidewalk, walkway, public building, and any other place or structure to which the general public is regularly, normally or customarily permitted or invited.
w. "Deaf person" means any person whose hearing is so severely impaired that the person is unable to hear and understand normal conversational speech through the unaided ear alone, and who must depend primarily on supportive device or visual communication such as writing, lip reading, sign language, and gestures.
x. "Atypical hereditary cellular or blood trait" means sickle cell trait, hemoglobin C trait, thalassemia trait, Tay-Sachs trait, or cystic fibrosis trait.
y. "Sickle cell trait" means the condition wherein the major natural hemoglobin components present in the blood of the individual are hemoglobin A (normal) and hemoglobin S (sickle hemoglobin) as defined by standard chemical and physical analytic techniques, including electrophoresis; and the proportion of hemoglobin A is greater than the proportion of hemoglobin S or one natural parent of the individual is shown to have only normal hemoglobin components (hemoglobin A, hemoglobin A2, hemoglobin F) in the normal proportions by standard chemical and physical analytic tests.
z. "Hemoglobin C trait" means the condition wherein the major natural hemoglobin components present in the blood of the individual are hemoglobin A (normal) and hemoglobin C as defined by standard chemical and physical analytic techniques, including electrophoresis; and the proportion of hemoglobin A is greater than the proportion of hemoglobin C or one natural parent of the individual is shown to have only normal hemoglobin components (hemoglobin A, hemoglobin A2, hemoglobin F) in normal proportions by standard chemical and physical analytic tests.
aa. "Thalassemia trait" means the presence of the thalassemia gene which in combination with another similar gene results in the chronic hereditary disease Cooley's anemia.
bb. "Tay-Sachs trait" means the presence of the Tay-Sachs gene which in combination with another similar gene results in the chronic hereditary disease Tay-Sachs.
cc. "Cystic fibrosis trait" means the presence of the cystic fibrosis gene which in combination with another similar gene results in the chronic hereditary disease cystic fibrosis.
dd. "Service dog" means any dog individually trained to a handicapped person's requirements including, but not limited to minimal protection work, rescue work, pulling a wheelchair or retrieving dropped items.
ee. "Qualified Medicaid applicant" means an individual who is a qualified applicant pursuant to P.L.1968, c.413 (C.30:4D-1 et seq.).
ff. "Affectional or sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation.
gg. "Hetrosexuality" means affectional, emotional or physical attraction or behavior which is primarily directed towards persons of the other gender.
hh. "Homosexuality" means affectional, emotional or physical attraction or behavior which is primarily directed towards persons of the same gender.
ii. "Bisexuality" means affectional, emotional or physical attraction or behavior which is directed towards persons of either gender.
jj. "Familial status" means being the natural parent of a child, the adoptive parent of a child, the foster parent of a child, having a "parent and child relationship" with a child as defined by State law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child, or any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.
kk. "Housing for older persons" means housing:
(1) provided under any State or federal program that the Attorney General determines is specifically designed and operated to assist elderly persons (as defined in the State or federal program); or
(2) intended for, and solely occupied by persons 62 years of age or older; or
(3) intended and operated for occupancy by at least one person 55 years of age or older per unit. In determining whether housing qualifies as housing for older persons under this subsection, the Attorney General shall adopt regulations which require at least the following factors:
(a) the existence of significant facilities and services specifically designed to meet the physical or social needs of older persons, or if the provision of such facilities and services is not practicable, that such housing is necessary to provide important housing opportunities for older persons; and
(b) that at least 80 percent of the units are occupied by at least one person 55 years of age or older per unit; and
(c) the publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older.
Housing shall not fail to meet the requirements for housing for older persons by reason of: persons residing in such housing as of March 12, 1989 not meeting the age requirements of this subsection, provided that new occupants of such housing meet the age requirements of this subsection; or unoccupied units, provided that such units are reserved for occupancy by persons who meet the age requirements of this subsection.
ll. "Discrimination because of sex" includes sexual harassment and discrimination because of pregnancy, childbirth, or related medical conditions.
mm. "Sexual harassment" means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:
(1) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accomodations or public services, education, or housing; or
(2) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual's employment, public accomodations or public services, education, or housing; or
(3) The conduct or communication has the purpose or effect of unreasonably interfering with an individual's employment, public accomodations or public services, education, or housing environment.
(cf: P.L.1992, c.146, s.4)
7. Section 12 of P.L.1945, c.169 (C.10:5-13) is amended to read as follows:
12. Any person claiming to be aggrieved by an unlawful employment practice or an unlawful discrimination may, personally or by an attorney-at-law, make, sign and file with the division a verified complaint in writing which shall state the name and address of the person, employer, labor organization, employment agency, owner, lessee, proprietor, manager, superintendent, or agent alleged to have committed the unlawful employment practice or unlawful discrimination complained of and which shall set forth the particulars thereof and shall contain such other information as may be required by the division. Upon receipt of the complaint, the division shall notify the complainant on a form promulgated by the director of the division and approved by the Attorney General of the complainant's rights under this act, including the right to file a complaint in the Superior Court to be heard before a jury; of the jurisdictional limitations of the division; and any other provisions of this act, without interpretation, that may apply to the complaint. The Commissioner of Labor, the Attorney General, or the Commissioner of Education may, in like manner, make, sign and file such complaint. Any employer whose employees, or some of them, refuse or threaten to refuse to co-operate with the provisions of this act, may file with the division a verified complaint asking for assistance by conciliation or other remedial action.
Any complainant may pursuant to N.J.S.2A:14-1 initiate suit in Superior Court under this act without first filing a complaint with the division or any municipal office. Upon the application of any party, a jury trial shall be directed to try the validity of any claim under this act specified in the suit. All remedies available in common law tort actions shall be available to prevailing plaintiffs. These remedies are in addition to any provided by this act or any other statute. A complaining party who proves discrimination shall be entitled to a presumption of full relief necessary to correct the natural consequences of that discrimination, unless the respondent demonstrates with clear and convincing evidence that the consequences would not have resulted, even if the respondent had not discriminated. Prosecution of such suit in Superior Court under this act shall bar the filing of a complaint with the division or any municipal office during the pendency of any such suit.
At any time after 180 days from the filing of a complaint with the division, a complainant may file a request with the division to present the action personally or through counsel to the Office of Administrative Law. Upon such request, the director of the division shall file the action with the Office of Administrative Law, provided that no action may be filed with the Office of Administrative Law where the director of the division has found that no probable cause exists to credit the allegations of the complaint or has otherwise dismissed the complaint.
A party to an action based upon a violation of this act shall mail a copy of the initial pleadings or claims, amended pleadings or claims, counterclaims, briefs, and legal memoranda to the division at the same time as filing such documents with the Office of Administrative Law or the court. Upon application to the Office of Administrative Law or to the court wherein the matter is pending, the division shall be permitted to intervene.
An employee who files a complaint of discrimination with the division shall, within 30 days of his written notice to the employer, be entitled to a copy of all personnel policies relevant to his complaint; his complete personnel file, including evaluations and salary records; a complete written statement of reasons for the action which is the subject of the complaint; and any other documents relevant to the complaint.
(cf: P.L.1990, c.12, s.2)
8. (New section) An individual may not prospectively waive any substantive, procedural, or remedial right under the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.). An individual may waive claims under this act based on past events provided the waiver is knowing and voluntary. No waiver agreement shall affect the power and responsibility of the division to enforce the provisions of this act.
9. Section 17 of P.L.1945, c.169 (C.10:5-18) is amended to read as follows:
17. The Attorney General shall establish rules of practice to govern, expedite and effectuate the foregoing procedure and his own actions thereunder. Any complaint filed in the division or in any municipal office pursuant to this act must be so filed within [180 days] two years after the alleged act of discrimination or after that act adversely affected the complainant, whichever was later.
(cf: P.L.1979, c.404, s.4)
10. Section 26 of P.L.1945, c.169 (C.10:5-27) is amended to read as follows:
26. The provisions of this act shall be construed fairly and justly with due regard to the interests of all parties. Nothing contained in this act shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this State relating to discrimination because of race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation or sex or liability for service in the Armed Forces of the United States; except that, as to practices and acts declared unlawful by section 11 of this act, the procedure herein provided shall, while pending, be exclusive[; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned]. Nothing herein contained shall bar, exclude, or otherwise affect any right or action, civil or criminal, which may exist independently of any right to redress against or specific relief from any unlawful employment practice or unlawful discrimination. With respect only to affectional or sexual orientation, nothing contained herein shall be construed to require the imposition of affirmative action, plans or quotas as specific relief from an unlawful employment practice or unlawful discrimination. At the same time that, under section 13 of P.L.1945, c.169 (C.10:5-14), a complainant is given notice of a finding as to whether or not there exists probable cause for crediting the allegations of the complaint, the Division on Civil Rights shall notify the complainant of the right of that complainant to initiate suit in the Superior Court pursuant to section 12 of P.L.1945, c.169 (C.10:5-13).
(cf: P.L.1991, c.519, s.9)
11. Section 6 of P.L.1979, c.404 (C.10:5-27.1) is amended to read as follows:
6. In any action or proceeding brought under this act or under the provisions of the Constitution of this State guaranteeing civil rights, the court or administrative trier of fact shall award the prevailing party [may be awarded] a reasonable attorney's fee, including expert fees and other litigation expenses, as part of the cost, provided however, that no attorney's fee shall be awarded to the respondent unless there
is a determination that the charge was [brought in bad faith] frivolous.
(cf: P.L.1979, c.404, s.6)
12. N.J.S.2A:14-1 is amended to read as follows:
2A:14-1. Every action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another, including, but not limited to, claims for violations of the New Jersey Constitution, not stated in [sections] N.J.S.2A:14-2 and 2A:14-3 [of this Title], or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced within [6] six years next after the cause of any such action shall have accrued.
This section shall not apply to any action for breach of any contract for sale governed by [section] N.J.S.12A:2-725 [of the New Jersey Statutes].
(cf: P.L.1961, c.121, s.1)
13. (New section) In any action upon a complaint alleging an unlawful employment practice under the provisions of P.L.1945, c.169 (C.10:5-1 et seq.), where the complaining party demonstrates that an employer has failed to produce (1) records required by federal or State law except section 12 of P.L.1945, c.169 (C.10:5-13), and those records are probative of the issues at trial, or (2) the statement of reasons for the employment decision required by section 12 of P.L.1945, c.169 (C.10:5-13), an adverse inference shall be drawn from that failure of production and in addition, where justified, the court may refuse to allow additional evidence to be introduced by the employer on those issues. Evidence concerning a respondent's affirmative action efforts, if any, or its equal employment posture shall be admissible in evidence and no privilege shall attach to such evidence.
14. (New section) The amendatory and supplementary provisions of this act, P.L. , c. (C. ) (now pending before the Legislature as this bill) shall be liberally construed to carry out the remedial purposes of this act, and shall not be construed to limit in any way the relief available to carry out those remedial purposes, with respect to discrimination in matters other than employment, of other provisions of P.L.1945, c.169 (C.10:5-1 et seq.).
15. (New section) a. Notwithstanding any other provision of law, and except as provided in subsection b. of this section, an employment practice that implements a litigated or consent judgment or order resolving a claim of employment discrimination under the act may not be challenged in a subsequent claim under the act:
(1) By a person who, prior to the entry of such judgment or order, had notice, from any source, consistent with the requirements of due process, of the proposed judgment or order sufficient to apprise him that such judgment or order might affect him; and a reasonable opportunity to present objections to such judgment or order; or
(2) By a person with respect to whom the requirements of paragraph a. are not satisfied, if the court determines that the interests of such persons were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order; or
(3) If the court which entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons.
b. Nothing in this section shall be construed to:
(1) Alter the standards for intervention under Rule 4:33 of the Rules Governing the Courts of New Jersey;
(2) Apply to the rights of parties to the action in which the litigated or consent judgment or order was entered, or members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action; or
(3) Prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction.
c. Any action, not precluded under subsection a. of this section, which challenges an employment practice that implements a litigated or consent judgment or order resolving a claim of employment discrimination under the act shall be brought, if possible, before the judge that entered such judgment or order.
16. (New section) Where a seniority system or seniority practice is part of a collective bargaining agreement and that system or practice was included in the agreement with the intent to discriminate on the basis of race, color, religion, sex, or national origin, the application of that system or practice during the period that such collective bargaining agreement is in effect shall be an unlawful employment practice.
17. (New section) a. A court shall not enter a consent order or judgment settling a claim alleging discrimination in employment unless the parties and their counsel attest that a waiver of all or substantially all attorneys' fees was not compelled as a condition of the settlement.
b. In any action or proceeding in which any judgment or order granting relief under this act is challenged, the court, in its discretion and in order to promote fairness, may allow the prevailing party in the original action to recover from either an unsuccessful party challenging such relief or a party against whom relief was granted in the original action or from more than one such party under an equitable allocation determined by the court, a reasonable attorney's fee including expert fees and other litigation expenses and costs reasonably incurred in defending, as a party, intervenor or otherwise, such judgment or order. In determining whether to allow recovery of fees from the party challenging the initial judgment or order, the court should consider not only whether such challenge was unsuccessful, but also whether the award of fees against the challenging party promotes fairness, taking into consideration such factors as the reasonableness of the challenging party's legal and factual position and whether other special circumstances make an award unjust.
18. This act shall take effect immediately and shall apply to all pending cases.
STATEMENT
This bill would amend and supplement New Jersey's "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.), to clarify certain issues involved in cases alleging discrimination in employment. This bill is modeled on legislation which was introduced in 1991 in Congress seeking to modify certain U.S. Supreme Court rulings in employment discrimination cases to ensure that the rights of those adversely affected by discriminatory employment practices are adequately protected.
The relevant provisions of the bill are as follows:
1. The bill would prohibit or effectively deter employers' use of quotas in the hiring and promotion of employees.
2. The bill would provide that an unlawful employment practice could be established by a complainant who demonstrates that discrimination on account of race, color, religion, sex, marital status, etc. was a contributing factor for an employment practice, even if the practice was motivated by other factors as well.
3. The bill would provide that an unlawful employment practice based upon disparate impact would be established by a complainant who demonstrates that the practice or a group of employment practices results in a disparate impact on the basis of race, color, religion, sex, marital status, etc. and the respondent fails to demonstrate that the practice is required by business necessity.
4. The bill would provide that where a seniority system or practice is part of a collective bargaining agreement and was included in such agreement with the intent to discriminate, the application of such system or practice is to be an unlawful employment practice.
5. The bill would provide that all actions brought under the "Law Against Discrimination", on the basis of "sex" is to include sexual harassment and discrimination because of pregnancy, childbirth, or related medical conditions
6. The bill would also strengthen several procedural provisions under the "Law Against Discrimination."
7. The bill would provide that the awarding of attorney's fees to the prevailing party in an action under the "Law Against Discrimination", currently optional, is made mandatory. The bill extends the scope of the provision to actions under the civil rights provisions of the State Constitution (Art. I, par. 5) and provides that attorney's fees are to include expert fees and other litigation expenses.
8. The bill would prohibit a court from entering a consent order or judgment settling an employment discrimination claim unless the parties and their counsel attest that no waiver of all or substantially all attorneys' fees was compelled as a condition of the settlement. It would also provide that a prevailing party in an original action resulting in a judgment or order granting relief may be awarded reasonable attorney's fees, including experts' and other expenses of litigation, and costs incurred in the course of defending the judgment or order
Strengthens the "Law Against Discrimination" in cases involving discrimination.