After the Civil War, Congress passed a law known as “Section 1983.” Section 1983 was part of the Ku Klux Klan Act, also known as the Civil Rights Act of 1871. The Act was passed at the urging of President Ulysses S. Grant as part of a series of measures during Reconstruction to protect the rights (and safety) of freed slaves in the South, who were facing increased violence and intimidation from the Klan and others. Indeed, much of this was orchestrated with local government. Section 1983 therefore made it illegal for someone to act “under color of law or authority” to deprive another person of their rights under the United States Constitution or federal law. Essentially, it gave people a remedy for violation of their rights. It allowed for civil suits, injunctions, punitive damages and the recovery of attorneys fees as well. Over the years, Section 1983 has come to protect the rights of public employees from the denial of rights by local government employers.
However, New Jersey had no counterpart for a remedy for people deprived of their rights under the New Jersey Constitution or New Jersey law, which was not protected under Section 1983. To resolve this gap, in 2004, New Jersey enacted the New Jersey Civil Rights Act to provide a remedy for violations of a person’s civil rights protected by New Jersey laws or the New Jersey Constitution. Like its federal counterpart Section 1983, the New Jersey Civil Rights Act protects public employees from deprivation of their civil rights by their local employers. As currently interpreted by the courts, the New Jersey Civil Rights Act allows for suits only against local governments such as towns, cities, boards of education, counties and local government authorities (such as housing authorities, parking authorities, etc.).
Courts interpreting the New Jersey Civil Rights Act tend to follow the federal courts’ interpretation of Section 1983, albeit applying it to New Jersey’s law. Federal courts have ruled that in order to have a claim under Section 1983, an employee must prove three things. First, she must prove that she was an employee of “a public agency in a position that does not require political affiliation.” Second, she must prove that she was “engaged in constitutionally protected conduct” or in some other way protected. Third, the must prove that the protected conduct or other protection was “a substantial or motivating factor in the government’s employment decision.” The same test applies for the New Jersey Civil Right Act, albeit that the conduct protection must be under New Jersey law rather than federal law.
In the recent case of LaPolla v County of Union, the Appellate Division of New Jersey’s Superior Court explained the types of cases can bring for retaliation over an employee’s protected political beliefs or actions. An employee cannot be forced to join or support a particular political party or faction; and she cannot be retaliated against for supporting a different party or faction than that favored by her employer. Likewise, an employer may not terminate or otherwise get rid of an employee to make room for the employer’s political supporters. Indeed, even action taken on the mistaken belief of an employee’s political actions is the basis for a successful lawsuit. Moreover, an employer cannot even retaliate against an employee for choosing not to be political, supporting no party, or having no political preferences at all.
Our employment attorneys represent New Jersey public employees when their employers have violated their civil rights because of political affiliation, and indeed any other legally protected reason. Call (973) 890-0004 or email us to schedule a consultation.