Theft of company documents to support discrimination claim may constitute protected activity.

The plaintiff was employed as the defendant's Executive Director of Human Resources. After she was passed over for promotion, she began to copy company documents and provided them to her attorney. The records that were taken included the evaluation of the successful candidate. After the plaintiff was terminated for taking the documents, she amended her complaint to assert a retaliation claim. At trial, the plaintiff was awarded a multi-million dollar award, although it was reversed by the Appellate Division. In reinstating the jury verdict and in reviewing the issue for the first time, the New Jersey Supreme Court refused to adopt a bright line rule and instead adopted a seven-factor analysis that must be employed by the trial court with regard to whether the unauthorized taking of records is a protected activity under the NJLAD.

Case Law Alert - 1st Qtr 2011