Peter Frattarelli, Chair of Archer’s Labor & Employment Group, was recently interviewed for Charles Toutant’s NJ Law Journal article, “White Employees Are Suing for Discrimination. What Will Jurors Think?” The article addresses a recent Supreme Court ruling on affirmative action in higher education which will likely result in an uptick in workplace discrimination suits by white plaintiffs.
When asked about the legal status of discrimination suits by white plaintiffs in New Jersey, Pete said it is, “not a completely settled legal issue right now.” Pete spoke about the “unusual employer” standard for reverse discrimination claims, which requires plaintiffs to show “something more than just your typical prima facie case to get your foot in the door.” This standard has been adopted by New Jersey’s lower courts, but not by the Supreme Court.
Pete goes on to acknowledge that these cases are reverse discrimination cases are difficult to win and says jurors’ reactions will be hard to predict – but geography could matter. He stated, “you’re going to have some counties, some jurisdictions, that are more conservative or less likely to believe discrimination happens. Maybe it’s Salem County, New Jersey, versus Mercer County. Maybe they’re just a little bit more liberal thinking or, you know… I don’t know how that’s going to play in a reverse discrimination case with you suddenly swap that out? I would think that a jury that would tend to believe discrimination happened isn’t suddenly going to say it could never happen because the person was white. So I think it’s a real open question as to what juries would do with these.”
To read the article, click here.