In addressing a conflict of authority on the issue, the Superior Court of New Jersey, Appellate Division, recently held, in Hester v. Parker, No. A-1681-09T1, that filing an internal complaint and a subsequent civil complaint alleging discrimination could constitute protected "whistleblower" activities for purposes of New Jersey's Conscientious Employee Protection Act ("CEPA"). CEPA prohibits employers from retaliating against an employee because "the employee...[d]iscloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer...that the employee reasonably believes...is in violation of a law, or a rule or regulation promulgated pursuant to law...." N.J.S.A. 34:19-3. In Hester, the plaintiff, who worked for a board of education in a school district, disclosed what he believed to be reverse racial discrimination on two occasions, once to the school district's Director of Human Resources and, thereafter, in a lawsuit filed against the board of education. Shortly after the board was served with the complaint, the plaintiff was terminated from his position.

The issue on appeal was whether the plaintiff's filing of an internal complaint and a later civil complaint qualified as whistleblowing activities under CEPA. In reversing the lower court's grant of summary judgment to the employer, the appellate court observed that under the circumstances of this case, the plaintiff's allegations of racial discrimination did indeed qualify as protected activities. The court, however, cautioned that not every decision to terminate an employee after the filing of a grievance, administrative charge, or lawsuit against an employer will trigger the protections of CEPA. Rather, the court opined that such protection for filing a complaint may be available where (i) an employee complains of illegal activity; (ii) the employer fails to remedy the situation; and (iii) the employee thereafter files a complaint asserting violations of clearly mandated standards.

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