burden-shifting framework in New Jersey

2026New Jersey courts follow the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate NJLAD claims which requires a plaintiff to first establish a prima facie discrimination claim.

2025Our courts utilize the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate LAD claims, requiring plaintiffs first to establish a prima facie discrimination claim.

2025In the final stage of the burden-shifting framework, the employee must "prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Meade v. Twp. of Livingston, 249 N.J. 310 , 329 (2021) (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005)).

2024In the final stage of the burden-shifting framework, the employee must "prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Meade v. Twp. of Livingston, 249 N.J. 310 , 329 (2021) (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005)).

2025Viscik, 173 N.J. at 13-14 .

2018To prove employment discrimination under the LAD, New Jersey courts have adopted the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , (1973); Viscik, 173 N.J. at 13-14 .

2021Anderson v. Exxon Co., U.S.A., 89 N.J. 483, 492-93 (1982).

2020A-4313-17T3 27 When reviewing LAD claims, we also consider the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), and adopted by our Supreme Court, Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 546 (2013); Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492-93 (1982).

2021To establish a prima facie claim under CEPA, a plaintiff must demonstrate: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule[] or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle[]blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle[]blowing activity and the adverse employment action. [Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003); see also Lippman, 222 N.J. at 380

2019To establish a prima facie claim under CEPA, a plaintiff must demonstrate: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; A-4521-16T3 2 (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action. [Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar v

2026Servs., 204 N.J. 320, 331 (2010)).] First, S.G. fails to state a prima facie claim under the LAD.

2022Servs., 204 N.J. 320, 331 (2010)).] To prove a prima facie case, a plaintiff must show (1) they are a member of a protected class, (2) they are "otherwise qualified" and can perform "the essential functions of the job"; (3) they were terminated or not selected for a position; and (4) "the employer thereafter sought similarly qualified individuals for that job." Smith v. Millville Rescue Squad, 225 N.J. 373, 395 (2016) (quoting Victor v. State, 203 N.J. 383, 409 (2010)).

2023Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 546 (2013).

2020A-4313-17T3 27 When reviewing LAD claims, we also consider the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), and adopted by our Supreme Court, Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 546 (2013); Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492-93 (1982).

2021To establish a prima facie claim under CEPA, a plaintiff must demonstrate: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule[] or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle[]blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle[]blowing activity and the adverse employment action. [Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003); see also Lippman, 222 N.J. at 380

2019To establish a prima facie claim under CEPA, a plaintiff must demonstrate: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; A-4521-16T3 2 (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action. [Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar v

2021To establish a prima facie claim under CEPA, a plaintiff must demonstrate: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule[] or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle[]blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle[]blowing activity and the adverse employment action. [Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003); see also Lippman, 222 N.J. at 380

2019To establish a prima facie claim under CEPA, a plaintiff must demonstrate: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; A-4521-16T3 2 (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action. [Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar v

2020Under this framework, (1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate nondiscriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application. [Henry, 204 N.J. at 331 (quoting Dixon v. Rutgers, 110 N.J. 432, 442 (1988)).] See McDonnell Douglas, 411 U.S. at 802, 804 .

2018In a suit alleging unlawful discrimination for failure to promote under the LAD, a plaintiff's prima facie case consists of demonstrating that: (1) he "is a member of a class protected by the anti-discrimination law"; (2) he "was qualified for the position or rank sought"; (3) he "was denied promotion"; and (4) others "with similar or lesser qualifications achieved the rank or position." Dixon v. Rutgers, 110 N.J. 432, 443 (1988).

2019See Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 90 (2012) (citing Grigoletti v. Ortho Pharm.

2019See Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 90 (2012) (citing Grigoletti v. Ortho Pharm.

2022Servs., 204 N.J. 320, 331 (2010)).] To prove a prima facie case, a plaintiff must show (1) they are a member of a protected class, (2) they are "otherwise qualified" and can perform "the essential functions of the job"; (3) they were terminated or not selected for a position; and (4) "the employer thereafter sought similarly qualified individuals for that job." Smith v. Millville Rescue Squad, 225 N.J. 373, 395 (2016) (quoting Victor v. State, 203 N.J. 383, 409 (2010)).

2022Victor, 203 N.J. at 408 .

2003We cited, for instance, Matczak v. Frankford Candy & Chocolate Co., 136 F. 3d 933, 939 (3d Cir.1997) in which that court noted that "once it is determined that [a plaintiff] `was objectively qualified for the job, [the court] should not have required [plaintiff] to demonstrate that his performance met his employer's subjective expectations." In our view, by any objective measure, plaintiff did not qualify for the position of dual shift manager because of her lack of demonstrated proficiency in craps.

1998McDonnell Douglas, supra, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, 36 L.Ed. 2d at 677 -78 n. 13; Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933 (3d Cir. 1997).

2025We next turn to the award of attorneys' fees, which Therese argues were improperly awarded under Rule 4:42-9(a)(3). "[F]ee determinations by trial [judges] will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

2025We next turn to the award of attorneys' fees, which Therese argues were improperly awarded under Rule 4:42-9(a)(3). "[F]ee determinations by trial [judges] will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

2025See e.g., Goodman v. London Metals Exch., Inc., 86 N.J. 19, 31-32 (1981); Peper v. Princeton Univ.

2025Myers v. AT & T, 380 N.J.

2024In Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 97-98 (1990), our Supreme Court noted its acceptance of the burden-shifting framework developed under McDonnell Douglas, a Title VII case, as the general framework for analyzing LAD claims.

2024On the issue of pretext, the trial court addressed the burden shifting analysis request under Romano v. Brown & Williamson Tobacco Corp., 284 N.J.

2024She argues "[a]iding and abetting is not separately addressed as there was no independent basis for summary judgment to be granted and there is nothing further to argue A-2883-21 7 sex discrimination under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as it is undisputed plaintiff is a member of a protected class, was performing her job as an instructor at the Academy and was involuntarily transferred from that position, which qualifies as an adverse employment action under Mancini v. Twp. of Teaneck, 349 N.J.

2022Two years later, this Court applied Bozza’s burden-shifting framework to the sale of string beans in open bins, and adopted the term “mode of operation.” Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 428-29 (1966).

2022Two years later, this Court applied Bozza’s burden-shifting framework to the sale of string beans in open bins, and adopted the term “mode of operation.” Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 428-29 (1966).

2022See Wollerman, 47 N.J. at 429 (stating that because “the fair probability is that [the] defendant [store] did less than its duty demanded,” “[i]t is just, therefore, to place ‘the onus of producing evidence upon the party who is possessed of superior knowledge or opportunity for explanation of the causative circumstances’” (quoting Kahalili, 26 N.J. at 606 (res ipsa case), and citing Bornstein v. Metro.

2022Servs., 204 N.J. 320, 331 (2010)).] To prove a prima facie case, a plaintiff must show (1) they are a member of a protected class, (2) they are "otherwise qualified" and can perform "the essential functions of the job"; (3) they were terminated or not selected for a position; and (4) "the employer thereafter sought similarly qualified individuals for that job." Smith v. Millville Rescue Squad, 225 N.J. 373, 395 (2016) (quoting Victor v. State, 203 N.J. 383, 409 (2010)).

2021See Sklodowsky, 417 N.J.

2020Under State v. Vaughn, the State must first allege a violation of N.J.S.A. 18A:38-25, which then shifts the burden of production to the defendant to provide evidence "that a child attends a day A-0274-19T1 10 school in which the equivalent instruction is given, or that the child is receiving equivalent instruction elsewhere than at school." 44 N.J. 142, 147 (1965).