Resume Fraud Discovered After The Fact Does Not Bar N.J. State Law Discrimination Case

The N.J. Supreme Court issued an important employment law case, Cicchetti v Morris County Sheriff's Office, ___N.J.___(May 28, 2008). In a 50 page slip opinion involving a matter of first impression, the  Court held that "after-acquired evidence of resume fraud" will not bar a workplace discrimination claim or limit emotional distress or punitive damages under the New Jersey state anti-discrimination statute. Accordingly, a sheriff's officer who failed to disclose an expunged conviction was not prohibited from pursuing his discrimination based claims. However, the court also indicated that evidence of the conviction can be used to limit or potentially eliminate economic damages, including claims for back pay and front pay if that information would have resulted in the employee's discharge. The court basically followed McKennon v. Nashville Banner, 513 U.S. 352 (1995). As the court reasoned:

Rather, we conclude that, to the extent that plaintiff seeks an award of
economic damages, including backpay and front pay, the McKennon
analysis governs this dispute. That is to say, if the defendant
employer can bear its burden of proving that it would have
terminated plaintiff as soon as it learned of this expunged
conviction, then that date may be used to limit any backpay
award and to eliminate any front pay award. Finally, however,
regardless of whether defendant would have fired plaintiff upon
learning of the expunged conviction, plaintiff is entitled to
pursue his hostile work environment claim and to recover the
full measure of his non-economic damages including, if
appropriate, a punitive award. For these claims, the public
policy considerations expressed by our Legislature in our antidiscrimination
statutes weigh heavily in favor of permitting
plaintiff to have his day in court. The principles we further
through the LAD demand no less.

Another interesting aspect of this case is that the court dismissed the hostile work environment claims against the department's sheriff and undersheriff. While the statutestates that individual supervisory defendants cannot be personally liable for discrimination under the Act, they can be held liable for "aiding and abetting."  The plaintiff claimed that the sheriff and undersheriff "failed to act to protect [him] or…effectively respond to his complaints of discrimination," but the supreme court found the evidence insufficient to show that they aided and abetted in the harassment.

Mitchell H. Rubinstein