In an unusual decision, the New Jersey Supreme Court in Henry v. New Jersey Department of Human Services (A-69 September Term) added a new wrinkle in the state’s anti-discrimination law that will not sit well with employers.
 

The decision gives employee plaintiffs another way around the 2-year limitations period applicable to state discrimination cases. In the Henry case, the Plaintiff alleged that the truth had been withheld from her when she had been unfairly bypassed for promotion by Caucasian co-applicants. The Court found that Plaintiff was allegedly mislead regarding the reasons for her “reclassification,” and that – if she had known the truth –  she would have known of (“discovered”) that she had an actionable discrimination claim. Since the employer had allegedly hidden these facts from her, her claims of discrimination should not be barred by the statute of limitations.
 

In future cases where the date of “discovery” of a claim is at issue, a “Lopez” hearing will be held to determine when/if a plaintiff could have/should have known of the alleged discriminatory action.
 

This case, although it is intended to have limited application, is not good news for employers because it expands the “discovery” rule that can “toll” the two-year New Jersey Law Against Discrimination. This case may have the unfortunate side effect of producing a rash of demands by plaintiffs for Lopez hearings regarding what discrimination they “could have” known about during their employment.