Court Rules Employee Can Press Race Discrimination Claim that Is More than Two Years Old

By Thomas McKinney

New Jersey law requires that a victim of workplace discrimination must file a lawsuit within two years of the discrimination.  There is an exception to that law called the “discovery rule.”

On December 10, 2010, the Supreme Court of New Jersey concluded that the discovery rule applied to a State employee’s race discrimination claim even though the discrimination happened in 2004.  She claimed that she did not suspect the discrimination until 2006 and she filed suit in 2007.  In Henry v. NJ Dept. of Human Services, the Supreme Court held that Ms. Henry had the right to persuade the court that she could not have known of the discrimination until 2006 when other employees claimed widespread race discrimination.

The Henry opinion is also notable because it became the first battleground in what one Justice called “the true constitutional crisis that is looming.”  That crisis is the Chief Justice’s appointment of a Superior Court – Appellate Division judge to fill the Supreme Court vacancy created when Governor Christie refused to reappoint Justice Wallace and the New Jersey Senate refused to confirm the Governor’s nominee to the Supreme Court.  Justice Rivera-Soto abstained in voting on the Henry case in protest at the appointment of the temporary judge (Judge Stern) and he wrote that he will abstain on all cases in which Judge Stern participates.  Justice Rivera-Soto believes that Judge Stern was not properly appointed to the court because, he argued, the Chief Justice has no constitutional power to appoint Judge Stern under these circumstances.  He argued that the Chief Justice retains such power only when the court needs to meet its “quorum” of five members which is not an issue right now.

Four Justices on the court (Rabner, Long, LaVecchia, and Albin) issued an opinion that the New Jersey Constitution authorizes Chief Justice Rabner to appoint a Superior Court Judge temporarily to the Supreme Court when a vacancy arises to meet the court’s substantial workload.  They noted that this has happened on more than 800 other cases without protest.

Justice Hoens holds a different opinion and issued the rarely-used “dubitante” opinion to express her disagreement with both Justice Rivera-Soto and the four other Justices.  Justice Hoens wrote that she had “grave doubts” about the constitutional positions of both sides.  Justice Hoens wrote that the abstaining opinion is “absolutist” and ignores that the Constitution empowers the Chief Justice not the Supreme Court as a whole to make temporary assignments.  As to the other opinion, she opined that the Constitution permits the appointment power only where “necessary” which it was not in the Henry case.  Rather, she interprets the Constitution as empowering the Chief Justice with “more general authority…to act as he deems fit to ensure that the functions of the judiciary are carried out.”

December 14, 2010 – Paul Castronovo – Castronovo & McKinney, LLC

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.