Appeals Court Upholds Equal Access to Justice in Whistleblower and Discrimination Cases

By Thomas McKinney

The Fourteenth Amendment to the Constitution guarantees equal access to the courts regardless of the ability to pay. But a New Jersey appellate court ruled that a (very busy) trial judge violated that principle by making a fired school cook pay up to $450 per hour for a “discovery master” to handle her case. In Zehl v. City of Elizabeth Bd. of Ed. (May 31, 2012, App.Div.), the cook filed claims for whistleblowing and disability discrimination. Since the trial judge exposed the cook to an expensive discovery master, the court effectively deprived the cook of equal access to the courts by making it too expensive for her to litigate her case. Both of her claims involved laws designed to protect the public interest, therefore, making her pay those discovery master fees was intolerable. This ruling is important because aggressive defendants increasingly are burdening employees with burdensome litigation tactics which causes busy judges to farm out disputes to a discovery master (usually a private lawyer or retired judge) equally paid by both sides. In the end, the Zehl Court emphasized that employees who sue must not be burdened with such exorbitant costs merely for filing a lawsuit.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.