Article by Capehart Scatchard

By Ralph R. Smith, 3rd, Esq.

One issue that frequently comes up in employment discrimination litigation is whether an employer must identify as part of the discovery process past discrimination claims that may have been previously brought or asserted against it. Often, employers try to avoid disclosure of such information on the grounds that those past claims were based upon completely different protected classifications than the lawsuit where such information is sought.  This type of argument for non-disclosure has become more difficult to make in light of a recent New Jersey Appellate Court decision that found that such information could indeed be relevant evidence and discoverable even when the past discrimination claims are based upon different protected categories.

In Hansen v. Rite Aid Corporation, No. A-2972-13T3 (January 20, 2016), the plaintiff brought suit against his former employer and one of its loss prevention managers claiming that he was fired due to his age, gender, and sexual orientation in violation of New Jersey’s Law Against Discrimination (“LAD”).  As part of the discovery requested in the case, plaintiff sought to take the depositions of four former Rite Aid employees who previously claimed in separate litigation that the defendant loss prevention manager had discriminated against them on the basis of race, national origin and religion.  The trial judge refused to allow the depositions, finding that the previous claims involved completely different allegations, and the request to depose such witnesses was nothing more than a “fishing expedition” designed to seek information that was “incredibly irrelevant” to the case.  Ultimately, the case went to trial and a jury found that plaintiff did not establish his discrimination claims.

The case was appealed to the New Jersey Superior Court-Appellate Division.   There, the plaintiff claimed it was reversible error to have denied him the requested discovery regarding the other previous discrimination lawsuit against the defendants.  In finding error, the Appellate Division ruled that the requested depositions were relevant because the information obtained from them could have shown that the loss prevention manager discriminated against other employees and that Rite Aid knew about such prior discrimination and failed to take corrective action against it.  This the court concluded was relevant to whether Rite Aid had an effective anti-discrimination policy.  Along with being relevant on those issues, the court also believed that such information was similarly relevant to the plaintiff’s request for punitive damages.  This wrongful denial of discovery information, along with certain other claimed trial errors, resulted in a reversal of the jury’s decision and a remand of the case for a new trial on the discrimination charge.

In light of the expansive view expressed by the court in the Hansen matter regarding the relevancy of past discrimination matters asserted against an employer, employers must take their obligations seriously in having effective antidiscrimination policies in place to guard against all kinds of potential discrimination in the workplace.  Ultimately, the best way of eliminating such potentially thorny discovery issues from happening is doing all that is required by the law to prevent such discrimination from occurring in the first place.  Regular training of managers and employees on the evils of discrimination and having updated policies and procedures for investigating discrimination charges are critical to successfully achieving such goals for your workplace.