New Jersey’s Law Against Discrimination (NJLAD) has a well-earned reputation for being one of the most progressive anti-discrimination laws in the country. The law goes beyond protecting against workplace discrimination to protect current or former employees’ rights regarding disclosure, as well as the right to a trial by jury. In a just-decided case, a New Jersey physician whom a trial court told she was subject to mandatory arbitration successfully appealed that decision: though the appellate division was split on their reasons for granting her appeal, she won the right to bring her claims to a courtroom.

The case was filed by Dr. Esther Ogunyemi against her former employer, Garden State Medical Center, the Center for Spine and Joint Relief, and Dr. Dharam Mann. Dr. Ogunyemi claimed to have been sexually assaulted at a gathering at Dr. Mann’s house, and two weeks after having reported the incident, indicating to her employer that she was suffering distress as a result of the assault. She was fired shortly afterward and subsequently filed a complaint alleging violations of the Law Against Discrimination, sexual assault and battery, and intentional infliction of emotional distress. In response, her former employer pointed to a clause within the employment agreement that she had signed, mandating arbitration.

When the case went to trial, the court found that the parties had agreed to the terms of the contract and called the contract valid and enforceable. They rejected the notion that section 12.7 of the NJLAD —which says that any provision in an employment contract that waives substantive or procedural right or remedy relating to a claim of discrimination retaliation or harassment goes against public policy — and told the doctor that she needed to adhere to the contract’s arbitration requirement.

Dr. Ogunyemi then appealed that decision, arguing to the appellate court that the terms in the arbitration clause were ambiguous. She also maintained that Section 12.7 of the NJLAD prohibited the waiver of a trial.

On review of the case, the appellate division’s judges ultimately agreed that the employment contract’s clause was unenforceable, though they reached their conclusions for different reasons. Two of the judges found the clause, which encompassed 887 words in 36 unbroken lines, “difficult to decipher” and containing “mutually inconsistent means for dispute resolution” that left it unenforceable as a matter of law. The third judge wrote a concurring opinion that also found the employment contract unenforceable, but because she agreed with Dr. Ogunyemi’s statutory argument that the provision improperly waived her right to a jury trial under Section 12.7.

If you have been the victim of workplace discrimination or harassment or believe that you are being improperly required to participate in arbitration of a discrimination or harassment issue, the attorneys at Schorr & Associates can help. Contact us today to learn more.