SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued March 2, 2004 -- Decided August 9, 2004
WALLACE, J., writing for a Majority of the Court.
In this appeal involving claims of hostile work environment and sexual harassment under New Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to –49, the Court considers whether the trial court properly dismissed plaintiff’s claims for emotional distress damages and her claim against the owner of the Auto Group individually, and determines whether a party must receive some affirmative relief in the form of damages, injunctive relief, or declaratory relief to be considered a prevailing party under the LAD for purposes of entitlement to counsel fees.
Plaintiff, Carol Tarr, began working for Mack Auto Mall in late July 1994
as a finance and insurance manager. She worked there until July 1995, when
she left, allegedly because of sexual harassment in the workplace. At trial, Tarr
described the extensive and pervasive sexual harassment that she endured from a group
of particularly offensive male employees during the course of her employment. She asserted
that although Grimaldi, the general manager, heard much of the abusive conduct, he
made no effort to stop it. In fact, Tarr testified that Grimaldi himself
had made inappropriate comments to her on more than one occasion. She stated
that the constant abuse made her feel extremely uncomfortable, prompting her to quit
in July 1995. She returned a short time later because she needed the
job and because her immediate supervisor, who also had been the subject of
sexual harassment, assured her that the situation would improve. When it did not,
Tarr left again, in April 1996. Tarr’s testimony at trial was corroborated by
various witnesses, including her immediate supervisor and two other co-workers.
Defendant, Bob Ciasulli, was the sole owner of the Auto Group dealerships. Tarr
presented limited evidence of his direct involvement with the management of Mack Auto
Mall. Specifically, Tarr testified that Ciasulli held monthly meetings attended by all sales
personnel. In addition, Tarr’s immediate supervisor testified that she telephoned Ciasulli directly when
her immediate supervisor was not able to resolve an issue. Finally, a former
manager at the auto mall testified that Ciasulli once directed him to fire
a salesperson following allegations of sexual harassment.
At the close of Tarr’s case, the trial court dismissed her emotional
distress claims. The court ruled that the elements of emotional distress are the
same in both discrimination cases and in tort cases, and that the evidence
that Tarr was temporarily upset was insufficient to establish her claim. In addition,
at the close of all the evidence, the trial court dismissed the complaint
against Ciasulli, individually, and Auto Group. The case was submitted to the jury
solely against Tarr’s employer, Mack Auto Mall. In answer to special interrogatories, the
jury found that Tarr had been the victim of sexual harassment in the
workplace, but that she had suffered no economic loss. The trial court concluded
that Tarr was entitled to attorney fees as a prevailing party because the
jury found in her favor on the sexual harassment and hostile workplace claims.
Tarr appealed the dismissals of her emotional distress damages claim and of her
complaint against Auto Group. All three defendants cross-appealed from the order awarding counsel
fees. In a reported decision, the Appellate Division reversed the order dismissing the
emotional distress damages and the complaint against Ciasulli individually. The panel remanded for
a determination of Ciasulli’s individual liability, ordered a new trial on damages, both
compensatory and punitive, and affirmed the orders dismissing the complaints against Auto Group
and awarding counsel fees to plaintiff.
The Supreme Court granted certification, and granted amicus curiae status to the National
Employment Lawyers Association of New Jersey.
HELD : In a hostile work environment and sexual harassment case brought under the
Law Against Discrimination, a victim of discrimination may obtain redress for mental anguish
and embarrassment, without limitation to severe emotional or physical ailments, and plaintiff in
this case presented sufficient evidence of emotional distress damages to submit that issue
to the jury; the trial court properly dismissed plaintiff’s complaint against the owner
of the Auto Group inasmuch as plaintiff failed to establish that he had
aided and abetted the employees in their sexual harassment of her; to be
considered a prevailing party under the Law Against Discrimination for purposes of entitlement
to counsel fees, a party must receive some affirmative relief in the form
of damages, injunctive relief, or declaratory relief.
1. To prevail on a common law cause of action for intentional infliction
of emotional distress, a plaintiff must establish intentional and outrageous conduct by the
defendant, proximate cause, and distress that is severe. Our courts have long recognized
emotional distress damages as a component of various intentional torts and breach of
contract claims. (pp. 7-8)
2. The Legislature amended the LAD to authorize recovery of emotional distress damages
for discrimination claims. Emotional distress claims and damages need not be supported by
expert testimony. Rather, claims for emotional distress of varying degrees have been recognized
where a wrong is willful. A cause of action asserting discrimination is willful
rather than negligent. (pp. 8-12)
3. The purpose of the LAD is to eradicate discrimination in the workplace.
Underlying the LAD’s expansive language advocating the elimination of discrimination is also the
directive that victims of discrimination be compensated for economic and noneconomic injuries attributable
to an employer’s discriminatory conduct. (pp. 12-13)
4. The Legislature intended victims of discrimination to obtain redress for mental anguish,
embarrassment, and the like, without limitation to severe emotional or physical ailments. Given
the breadth of individual and societal harms that flow from discrimination and harassment,
to limit the LAD’s application to only those cases in which the victim
suffered serious psychological harm would be contrary to its remedial purpose. It is
the harasser’s conduct, not the plaintiff’s injury, that must be severe or pervasive.
(pp. 13-15)
5. Compensatory damages for emotional distress, including humiliation and indignity resulting from willful
discriminatory conduct, are remedies that require a far less stringent standard of proof
than that required for a tort-based emotional distress cause of action. Thus, in
discrimination cases, which by definition involve willful conduct, the victim may recover all
natural consequences of that wrongful conduct, including emotional distress and mental anguish damages
arising out of embarrassment, humiliation, and other intangible injuries. Thus, that portion of
the Appellate Division’s judgment remanding for a new trial on damages is affirmed.
(p. 15)
6. In order to hold an employee liable as an aider or abettor
under the LAD, a plaintiff must show that the party whom the defendant
aids performs a wrongful act that causes an injury; the defendant must be
generally aware of his role as part of an overall illegal or tortious
activity at the time that he provides the assistance; and the defendant must
knowingly and substantially assist the principal violation. Applying those factors, the Court concludes
that Tarr failed to present evidence that Ciasulli aided and abetted the employees
in their sexual harassment of her. At best, the record discloses that Ciasulli,
as the supervisor in the network of auto dealerships, negligently supervised his employees,
which is insufficient to find substantial assistance to wrongdoers to impose individual liability
under the LAD. Thus, the Court affirms the trial court’s dismissal of the
complaint against Ciasulli. (pp. 15-19)
7. A plaintiff who is awarded some affirmative relief by way of an
enforceable judgment against defendant or other comparable relief through a settlement or consent
decree is a prevailing party under the LAD. Moreover, a plaintiff who is
awarded nominal damages is a prevailing party under the LAD. In the case
of nominal damages, however, whether to award minimal attorney’s fees or no fees
at all is left to the discretion of the trial court. (pp. 20-22)
Judgment of the Appellate Division remanding to the trial court for a
new trial on damages is AFFIRMED. Judgment of the Appellate Division imposing individual
liability on Ciasulli is REVERSED. Judgment of the Appellate Division affirming the award
of counsel fees to plaintiff is REVERSED and REMANDED for RECONSIDERATION of the
award of attorney’s fees.
JUSTICE LaVECCHIA has filed a separate opinion, concurring in part and dissenting in
part, in which JUSTICE VERNIERO joins. Justice LaVecchia would not lessen the proof
requirements for compensatory damages in the absence of textual support in the LAD
for a lesser standard of proof than that which the Court established in
Taylor v. Metzger for the common law tort of infliction of emotional distress
committed in a harassment setting. While recognizing that the Court expanded the test
for intentional infliction of emotional distress where that cause of action was based
on discriminatory conduct and joined with causes of action for discrimination under the
LAD, Justice LaVecchia believed that the Court had not altered the basic requirement
that only “severe” distress will sustain an award of compensatory damages. Justice LaVecchia,
however, joins in the Court’s reversal of the Appellate Division’s judgment that imposed
individual liability on Ciasulli, and further concurs in the Court’s conclusion that to
recover attorney’s fees as a prevailing party under the LAD, our courts should
employ the same standard as that used for such claims under
42 U.S.C.A. 1988.
CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI and ALBIN join in JUSTICE WALLACE’s opinion.
JUSTICE LaVECCHIA filed a separate opinion concurring in part and dissenting in part,
in which JUSTICE VERNIERO joins. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
A-
24 September Term 2003
CAROL TARR,
Plaintiff-Respondent,
v.
BOB CIASULLI and BOB CIASULLI'S MACK AUTO MALL, INC.,
Defendants-Appellants,
and
BOB CIASULLI AUTO GROUP, INC., MONMOUTH HONDA JEEP EAGLE, PATRICK GRIMALDI, JOHN DESANTIS,
STEVEN FUENTAS, JOSEPH ANGELINI and JOHN DOE ONE THROUGH TEN,
Defendants.
Argued March 2, 2004 – Decided August 9, 2004
On certification to the Superior Court, Appellate Division, whose opinion is reported at
360 N.J. Super. 265 (2003).
Resa T. Drasin and Bradley M. Wilson argued the cause for appellants (Woehling
& Freeman and Nowell Amoroso Klein Bierman, attorneys).
Ronald L. Lueddeke argued the cause for respondent (Mr. Lueddeke and Lynda Lee,
attorneys).
Kathleen A. Dunnigan submitted a brief on behalf of amicus curiae, National Employment
Lawyers Association of New Jersey (Dwyer & Dunnigan, attorneys; Ms. Dunnigan, Frederic J.
Gross and Nancy E. Griffin, on the brief).
JUSTICE WALLACE delivered the opinion of the Court.
This case involves claims of hostile work environment and sexual harassment under New
Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff filed a complaint
against Bob Ciasulli (Ciasulli) and various of his wholly-owned corporations and their employees.
Prior to trial, all defendants were dismissed except for Ciasulli, Bob Ciasulli Auto
Group (Auto Group), and Bob Ciasulli’s Mack Auto Mall, Inc. (Mack Auto Mall).
At trial, the court dismissed plaintiff’s claim for emotional distress damages and the
claim against Ciasulli individually. The jury found Mack Auto Mall liable for sexual
harassment in the workplace, but did not find that plaintiff suffered any damages.
Despite her failure to prove damages, the court awarded attorney fees to plaintiff
as a prevailing party. The Appellate Division reversed in part, and affirmed in
part. Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc.,
360 N.J. Super. 265
(2003).
We granted certification,
178 N.J. 29 (2003), and granted amicus curiae status to
the National Employment Lawyers Association of New Jersey (amicus). We now affirm in
part, and reverse in part. We hold that plaintiff presented sufficient evidence of
emotional distress damages to submit that issue to the jury, that the trial
court properly dismissed the complaint against Ciasulli, and that to be considered a
prevailing party under the LAD for purposes of entitlement to counsel fees, a
party must receive some affirmative relief in the form of damages, injunctive relief,
or declaratory relief.
Plaintiff began working for Mack Auto Mall in late July 1994 as a finance and insurance manager. Plaintiff’s immediate supervisor, Kelly Bragg, reported to Patrick Grimaldi, the general manager of Mack Auto Mall. Plaintiff and Bragg shared office space located near the sales floor. Plaintiff worked at Mack Auto Mall until July 1995, when she left, allegedly because of sexual harassment in the workplace. Nevertheless, plaintiff returned to the job in August 1995 and remained until April 1996 when she again resigned because of the asserted sexual harassment.
At trial, plaintiff described the extensive and pervasive sexual harassment that she endured from a group of particularly offensive male employees. At various times, those employees would refer to women in demeaning gutter slang that we need not repeat here. Plaintiff testified that one employee would leave pornographic material on his desk, draw sexually explicit pictures on deal envelopes, open his legs and describe his sexual organ in detail, and discuss his sexual escapades with various women, some of whom were very young. Another employee regularly commented to her about his wishes to have a sexual encounter with her, and propositioned her to have sex in a “broom closet.” Plaintiff also had to deal with another employee who regularly made offensive sexual comments to her in the presence of strangers, intimating that his presence would sexually stimulate her.
Plaintiff stated that Grimaldi heard much of the abusive conduct, but made no effort to stop it. On one occasion he made a sexual comment when plaintiff dropped something in front of him. Also, Grimaldi once told plaintiff that she should loosen her blouse to help sell a warranty to a customer.
Plaintiff testified that the constant abuse made her feel extremely uncomfortable and led her to quit in July 1995. However, she returned a short time later because she needed the job and because Bragg, who was also subjected to sexual harassment, assured her that the situation would improve. Plaintiff’s testimony of sexual harassment was corroborated by various witnesses, including Bragg and two other coworkers.
Plaintiff stated that she was constantly embarrassed by the disgusting comments and conduct of the male employees. She explained that she often wanted to crawl under her desk. Her frustration with the abusive work environment reached a point where she regularly cried on her way home from work. Plaintiff eventually quit in April 1996.
Plaintiff presented limited evidence of Ciasulli’s direct involvement with the management of Mack Auto Mall. She testified that Ciasulli held monthly meetings attended by all sales personnel. Bragg testified that she considered Ciasulli her supervisor, and that she called him directly when her immediate supervisor could not resolve a problem. A former manager at Mack Auto Mall also testified that Ciasulli once told him to fire a salesperson following allegations of sexual harassment because the victim had threatened to file a complaint with the Attorney General’s office.
At the close of plaintiff’s case, the trial court dismissed plaintiff’s emotional distress claim. The court ruled that the elements of emotional distress are the same in both discrimination cases and in tort cases, and that the evidence that plaintiff was temporarily upset was insufficient to establish her claim.
Ciasulli also testified. He stated that he was the sole owner of the Auto Group dealerships and that there was a direct employee hotline through which employees could call his office. He added that if a corporate officer could not resolve a problem, an employee could come to him for a final resolution. He remarked that other female employees had filed sexual harassment claims, noting that their embellished complaints were suitable for a Hollywood script.
At the close of all the evidence, the trial court dismissed the complaint against Ciasulli, individually, and Auto Group. The case was submitted to the jury solely against plaintiff’s employer, Mack Auto Mall. In answer to special interrogatories, the jury found that plaintiff was the victim of sexual harassment in the workplace, but that she suffered no economic loss. The court concluded that plaintiff was entitled to attorney fees as a prevailing party because the jury found in plaintiff’s favor on the sexual harassment and hostile workplace claims.
Plaintiff appealed the dismissals of her emotional distress damages claim and of her complaint against Auto Group. All three defendants cross-appealed from the order awarding counsel fees. The Appellate Division reversed the order dismissing the emotional distress damages and the complaint against Ciasulli individually. Tarr, supra, 360 N.J. Super. at 280-81. The Appellate panel remanded for a determination of Ciasulli’s individual liability, ordered a new trial on damages, both compensatory and punitive, and affirmed the orders dismissing the complaint against Auto Group and awarding counsel fees to plaintiff. Ibid.
The resolution of the emotional distress damages claim requires us to consider whether the LAD permits a lower evidentiary threshold for recovery of such damages than is necessary to sustain a cause of action for intentional infliction of emotional distress.
We begin by reviewing the elements of a common law cause of action for intentional infliction of emotional distress. To prevail on such a claim “[t]he plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe.” Buckley v. Trenton Saving Fund Soc’y, 111 N.J. 355, 366 (1988). Generally, for the conduct to be actionable, “the emotional distress . . . must be ‘so severe that no reasonable [person] could be expected to endure it.’” Id. at 366-67 (quoting Restatement (Second) of Torts § 46 comment j at 77 (1965)). Because the severity of the emotional distress raises questions both of law and fact, the court “decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved.” Id. at 367.
Beyond a cause of action for emotional distress, our courts have long recognized emotional distress damages as a component of various intentional torts and breach of contract claims. See, e.g., Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 416 (1973) (awarding compensatory damages for pain and suffering inflicted upon plaintiff in denial of apartment rental because of her sex and marital status); Morris v. MacNab, 25 N.J. 271, 280 (1957) (permitting recovery for wife’s “shame, humiliation and mental anguish” caused by the defendant’s fraudulent inducement into bigamous marriage); Harris v. Delaware, Lackawanna & W. R.R., 82 N.J.L. 456, 458 (E. & A. 1912) (holding conductor liable in trespass for “humiliation and indignity” caused by wrongful conversion of railroad ticket); Kuzma v. Millinery Workers Union Local No. 24, 27 N.J. Super. 579, 592 (App. Div. 1953) (permitting recovery for mental anguish and emotional distress supported by tort of malicious interference with employment); Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 96-97 (Sup. Ct. 1936) (approving damages for mental anguish caused by cemetery’s breach of contract resulting in unnecessary exhumations); Gray v. Serruto Builders, Inc., 110 N.J. Super. 297, 315-18 (Ch. Div. 1970) (ruling that Director of Civil Rights Division has authority to award damages for emotional distress caused by racial discrimination in renting).
The Legislature amended the LAD to authorize recovery of emotional distress damages for discrimination claims. L. 1990, c. 12, § 1. The LAD now mandates courts to construe its provisions broadly:
The Legislature further finds that because of discrimination, people suffer personal hardships, and the State suffers a grievous harm. The personal hardships include: economic loss; time loss; physical and emotional stress; and in some cases severe emotional trauma, illness, homelessness or other irreparable harm resulting from the strain of employment controversies; relocation, search and moving difficulties; anxiety caused by lack of information, uncertainty, and resultant planning difficulty; career, education, family and social disruption; and adjustment problems, which particularly impact on those protected by this [A]ct. Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages. The Legislature intends that such damages be available to all persons protected by this [A]ct and that this [A]ct shall be liberally construed in combination with other protections available under the laws of this State.
[N.J.S.A. 10:5-3 (emphasis added).]
A post-amendment case permitted emotional distress damages under the LAD in the absence of expert testimony. Rendine v. Pantzer, 276 N.J. Super. 398 (App. Div. 1994), aff’d as modified, 141 N.J. 292 (1995). In that case, the female plaintiffs instituted an action under the LAD seeking damages for wrongful termination based on pregnancy. Id. at 421. The plaintiffs were awarded emotional distress damages. Id. at 439. On appeal, the defendant claimed the award for emotional distress should have been dismissed, or alternatively, the award was excessive because the plaintiffs did not submit any expert testimony or objective corroboration of their claims. Id. at 438, 442. The Appellate Division affirmed the award, noting that “[t]he Legislature [in N.J.S.A. 10:5-3] has specifically authorized recovery for the type of emotional distress [the] plaintiffs claimed.” Id. at 439. The court reasoned that:
Although defendant’s discriminatory treatment did not cause plaintiffs to relocate or suffer illness or homelessness, both plaintiffs described in detail their inconvenience and economic loss, physical and emotional stress, anxiety in searching for reemployment, uncertainty, career and family disruption and other adjustment problems. Plaintiffs’ problems seem precisely the type for which the Legislature intended compensation.
[Id. at 440.]
This Court affirmed the damage award, similarly relying on the 1990 amendment to
the LAD authorizing emotional distress damages, and rejected the defendant’s contention that expert
testimony or independent corroborative evidence was necessary to support the award of emotional
distress damages. Rendine, supra, 141 N.J. at 312.
Federal authorities have reached the same conclusion under federal statutes. The Fifth Circuit Court of Appeals upheld an emotional distress award to a Title VII pregnancy discrimination plaintiff that was based solely on the plaintiff’s testimony that her employer’s discrimination caused her low self-esteem, serious hardship in procuring daycare for her newborn child, anxiety attacks, stress, and sleeplessness. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1045-46 (5th Cir. 1998). In affirming the award, the Fifth Circuit concluded that the plaintiff’s testimony was sufficiently detailed to support the award. Id. at 1047. The court also observed that corroborating testimony and medical evidence are not required in every case involving nonpecuniary compensatory damages. Ibid.; see also Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997) (finding Title VII plaintiff’s testimony that supervisor’s offensive comments were intolerable and caused humiliation and loss of self-respect was sufficient to establish hostile work environment); Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997) (affirming emotional distress damages in Title VII claim supported solely by employee’s and spouse’s testimony about sleeplessness, stress anxiety, humiliation, and depression); Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir. 1996) (“A plaintiff’s own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff’s burden [to prove emotional distress].”); Bolden v. Southeastern Pa. Transp. Auth., 21 F.3d 29, 34 (3d Cir. 1994) (holding expert testimony not necessary to corroborate emotional distress damages in federal civil rights action); DeNieva v. Reyes, 966 F.2d 480, 487 (9th Cir. 1992) (affirming damages award premised solely on plaintiff’s testimony about emotional and physical distress including insomnia, dizziness, and vomiting); Secretary, U.S. Dep’t of Hous. & Urban Dev. ex rel. Herron v. Blackwell, 908 F.2d 864, 872-73 (11th Cir. 1990) (upholding emotional distress damages for housing discrimination based on plaintiff’s testimony regarding humiliation, insomnia, and headaches).
The preceding cases illustrate that claims for emotional distress of varying degrees have been recognized where a wrong is willful. A cause of action asserting discrimination is willful rather than negligent. Gray, supra, 110 N.J. Super. at 315.
We have declared that the purpose of the LAD is “the eradication ‘of the cancer of discrimination.’” Fuchilla v. Layman, 109 N.J. 319, 334 (quoting Jackson v. Concord Co., 54 N.J. 113, 124 (1969)), cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed.2d 51 (1988). The LAD expressly reflects the public policy considerations of protection of “the civil rights of individual aggrieved employees [and protection of] the public’s strong interest in a discrimination-free workplace.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 600 (1993). Underlying the LAD’s expansive language advocating the elimination of discrimination is also the directive that we compensate victims for economic and noneconomic injuries attributable to an employer’s discriminatory conduct. N.J.S.A. 10:5-3.
We are convinced that the Legislature intended victims of discrimination to obtain redress for mental anguish, embarrassment, and the like, without limitation to severe emotional or physical ailments. We adopt as our own, the reasoning of Judge Pressler in writing for the Appellate Division.
To suffer humiliation, embarrassment and indignity is by definition to suffer emotional distress. Emotional distress actually suffered in that manner by the victim of proscribed discrimination is compensable without corroborative proof, permanency of response, or other physical or psychological symptoms rendering the emotional distress severe or substantial. The quantum of compensation, which may be nominal in the terms we have described, is dependent upon the relevant factors we have identified including duration of the discriminatory conduct, its public nature, and its content and may be enhanced by such additional proofs of indicia of suffering as plaintiff may adduce. We add only that the duration and the content of the conduct asserted here clearly, in our view, warrants an award in some amount. No reasonable woman can be expected to have endured the constant and prolonged barrage of the extraordinarily demeaning and degrading sexual harassment to which this plaintiff was subjected without humiliation, embarrassment and loss of personal dignity and that was the emotional distress to which she testified. We leave the question of quantum to the fact finder.
[Tarr, supra, 360 N.J. Super. at 276-77.]
Our dissenting colleagues invoke Taylor v. Metzger,
152 N.J. 490 (1998), to reach
a contrary conclusion concerning the standard of proof for emotional distress damages under
the LAD. There, the Court found sufficient evidence of workplace discrimination for plaintiff
to proceed on her claim of LAD racial discrimination. Further, the Court clarified
the test for an intentional infliction of emotional distress cause of action as
set forth in Buckley, id. at 508-09, and found that the plaintiff’s evidence
was sufficient to support that cause of action as well, id. at 521.
There was no need for the Court to address the issue we face
today because the “evidence . . . relevant to [the] plaintiff’s claim of
emotional injury would overlap, if not duplicate, that proffered to establish her LAD
claim.” Id. at 509. Here, plaintiff’s claim is limited to her proofs under
the LAD, and if she prevails, she may recover attorney fees that are
not available for a cause of action for intentional infliction of emotional distress.
This Court noted long ago that “[g]iven the breadth of individual and societal
harms that flow from discrimination and harassment, to limit the LAD’s application to
only those cases in which the victim suffered, or could have suffered, serious
psychological harm would be contrary to its remedial purpose.” Lehmann, supra, 132 N.J.
at 609. “It is the harasser’s conduct, not the plaintiff’s injury, that must
be severe or pervasive.” Id. at 610.
In sum, we are satisfied that compensatory damages for emotional distress, including humiliation
and indignity resulting from willful discriminatory conduct, are remedies that require a far
less stringent standard of proof than that required for a tort-based emotional distress
cause of action. We hold that in discrimination cases, which by definition involve
willful conduct, the victim may recover all natural consequences of that wrongful conduct,
including emotional distress and mental anguish damages arising out of embarrassment, humiliation, and
other intangible injuries. Accordingly, we affirm that portion of the Appellate Division’s judgment
remanding for a new trial on damages.
We turn now to address whether there was sufficient evidence to submit the issue of Ciasulli’s individual liability to plaintiff for sexual harassment. The Appellate Division concluded that there was sufficient evidence that Ciasulli was negligent in implementing workplace programs and policies to prevent sexual harassment. Id. at 279-80. Plaintiff and amicus urge that we reach that same conclusion. Ciasulli maintains that although he was plaintiff’s ultimate supervisor, there was no evidence that he aided or abetted in the sexual harassment, which is a necessary requirement to impose individual liability.
N.J.S.A. 10:5-12a prohibits unlawful employment practices and unlawful discrimination by an employer. An employer “includes all persons as defined in subsection a. . . . unless otherwise specifically exempt under another section of [the LAD], and includes the State, any political or civil subdivision thereof, and all public officers, agencies, boards or bodies.” N.J.S.A. 10:5-5e. Subsection a. defines “[p]erson” as “one or more individuals, partnerships, associations, organizations, labor organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and fiduciaries.” N.J.S.A. 10:5-5a. Under a plain reading of these definitions an individual supervisor is not defined as an “employer” under the LAD. Nevertheless, it is unlawful “[f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden [under the LAD],” N.J.S.A. 10:5-12e, and such conduct may result in personal liability.
We have yet to address the meaning of “aiding and abetting” under the LAD. Because the words “aid” and “abet” are not defined in the Act, the general principles of statutory construction apply. First, in interpreting the statute, we look to the “ordinary and well understood meaning” of the words therein. Safeway Trails, Inc. v. Furman, 41 N.J. 467, 478, cert. denied, 379 U.S. 14, 85 S. Ct. 144, 13 L. Ed.2d 84 (1964). Also, we construe words in a series consistent with the words surrounding them. Gilhooley v. County of Union, 164 N.J. 533, 542 (2000).
Here, “aid” and “abet” are included with the series of words “incite,” “compel,” and “coerce.” The common dictionary definitions of these words prove helpful. Among other things, “aid” means “[t]o give help or assistance to,” Webster’s II New College Dictionary 23 (rev. updated ed. 2001); “abet” means “[t]o incite, encourage, or assist, esp. in wrongdoing,” id. at 2; “incite” means “[t]o provoke to action,” id. at 560; “compel” means “to force, drive, or constrain,” id. at 229; and “coerce” means “[t]o force to act or think in a given way by pressure, threats, or intimidation,” id. at 217. All of the words used are similar in meaning and require active and purposeful conduct.
The Third Circuit Court of Appeals predicted that we would define the terms “aiding” and “abetting” consistent with the Restatement (Second) of Torts § 876(b) (1979). Failla v. City of Passaic, 146 F.3d 149, 158 (1998) (“[W]e predict that the New Jersey Supreme Court would find that an employee aids and abets a violation of the LAD when he [or she] knowingly gives substantial assistance or encouragement to the unlawful conduct of [the] employer.”); see also Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 129 (3d Cir. 1999) (predicting that New Jersey courts would impose aiding and abetting liability only on supervisory employees), cert. denied, 528 U.S. 1074, 120 S. Ct. 786, 145 L. Ed.2d 663 (2000).
Section 876(b) of the Restatement imposes concert liability on an individual if he or she “knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.” We agree that the Restatement provides the proper standard by which to define the terms “aid” or “abet” under the LAD. Also, the Restatement definition is consistent with the common usage of those terms. Thus, in order to hold an employee liable as an aider or abettor, a plaintiff must show that “‘(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.’” Hurley, supra, 174 F. 3d at 127 (citations omitted).
With respect to that determination, the comments to section 876 provide a list of five factors, relied on by the Hurley court, to assess whether a defendant provides “substantial assistance” to the principal violator. Those factors are: (1) the nature of the act encouraged, (2) the amount of assistance given by the supervisor, (3) whether the supervisor was present at the time of the asserted harassment, (4) the supervisor’s relations to the others, and (5) the state of mind of the supervisor. Restatement (Second) of Torts, supra, § 876(b) comment d; Hurley, supra, 174 F. 3d at 127 n.27.
Applying those factors here, we conclude that plaintiff failed to present evidence that Ciasulli aided and abetted the employees in the sexual harassment of plaintiff. There was no evidence that Ciasulli encouraged any of the wrongful conduct against plaintiff, that he assisted the wrongdoers, or that he was even present when the wrongful conduct occurred. At best, the record discloses that Ciasulli, as the supervisor in the network of auto dealerships, negligently supervised his employees. That is insufficient to conclude that he provided substantial assistance to the wrongdoers to impose individual liability under N.J.S.A. 10:5-12e. Consequently, we affirm the trial court’s dismissal of the complaint against Ciasulli.
In light of our remand for a new trial on damages, although we need not decide whether a plaintiff may be considered a “prevailing party” where the jury finds plaintiff was the victim of sexual harassment but does not award damages, for purposes of completeness and guidance in future cases we add the following.
N.J.S.A. 10:5-27.1 provides that “the prevailing party may be awarded a reasonable attorney’s fee as part of the cost.” We have cited with approval the federal view that a prevailing party is one who succeeds “‘on any significant issue in litigation [that] achieves some of the benefit the parties sought in bringing suit.’” Szczepanski v. Newcomb Med. Ctr., 141 N.J. 346, 355 (1995) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1938, 76 L. Ed.2d 40, 50 (1983)). The United States Supreme Court has observed that “[t]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S. Ct. 1486, 1494, 103 L. Ed. 2d 866, 877 (1989) (awarding plaintiff organizations prevailing party status because judgment vindicated public employees First Amendment rights and materially altered school district’s policy).
Subsequently, in Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed.2d 494 (1992), the Court analyzed the standard for awarding attorney’s fees to a prevailing party under 42 U.S.C.A. §1988. The Court defined the prevailing party status as follows:
The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement. Otherwise the judgment or settlement cannot be said to “affec[t] the behavior of the defendant toward the plaintiff.” Only under these circumstances can civil rights litigation effect “the material alteration of the legal relationship of the parties” and thereby transform the plaintiff into a prevailing party. In short, a plaintiff “prevails” when actual relief on the merits of his [or her] claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.
[Id. at 111-12, 113 S. Ct. at 573,
121 L. Ed 2d at
(internal citations omitted) (first alteration in original).]
The Court held that a party who receives only nominal damages is still
deemed to be a prevailing party in the context of awarding attorney’s fees
under
42 U.S.C.A.
§1988. Id. at 113, 113 S. Ct. at 574,
121 L. Ed 2d at ___. However, the Court also concluded that the nominal
damages “bear on the propriety of fees awarded under § 1988,” id. at 114,
113 S. Ct. at 574,
121 L. Ed 2d at ___, because the
“degree of the plaintiff’s overall success goes to the reasonableness of a fee
award,” ibid., 113 S. Ct. at 574,
121 L. Ed 2d at ___
(citation and internal quotation marks omitted). There, the plaintiffs received one dollar in
damages and the Court affirmed the denial of attorney’s fees, observing that “[a]
plaintiff who seeks compensatory damages but receives no more than nominal damages” is
the type of prevailing party that is entitled to “no [attorney’s] fee[s] at
all.” Id. at 115, 113 S. Ct. at 575,
121 L. Ed 2d
at ___. The Court concluded that there must be a “‘relationship between the
extent of success and the amount of the fee award.’” Id. at 115-16,
113 S. Ct. at 575,
121 L. Ed 2d ___ (quoting Hensley, supra,
461 U.S. at 438, 103 S. Ct. at 1941,
76 L. Ed 2d
at ___).
We are persuaded by the reasoning of the United States Supreme Court and
hold that a plaintiff who is awarded some affirmative relief by way of
an enforceable judgment against defendant or other comparable relief through a settlement or
consent decree is a prevailing party under N.J.S.A. 10:5-27.1 of the LAD. Moreover,
in our view, a plaintiff who is awarded nominal damages is a prevailing
party under the LAD. In the case of a nominal damages award, however,
we leave to the discretion of the trial court whether to award minimal
attorney’s fees or no fees at all.
We affirm that part of the judgment of the Appellate Division that remanded to the trial court for a new trial on damages. We reverse the judgment imposing individual liability upon Ciasulli and reverse and remand for reconsideration of the award of attorney’s fees.
CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI and ALBIN join in JUSTICE WALLACE’s opinion. JUSTICE LaVECCHIA filed a separate opinion concurring in part and dissenting in part in which JUSTICE VERNIERO joins. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
A- 24 September Term 2003
CAROL TARR,
Plaintiff-Respondent,
v.
BOB CIASULLI and BOB
CIASULLI’S MACK AUTO MALL,
INC.,
Defendants-Appellants,
and
BOB CIASULLI AUTO GROUP,
INC., MONMOUTH HONDA JEEP
EAGLE, PATRICK GRIMALDI,
JOHN DESANTIS, STEVEN
FUENTAS, JOSEPH ANGELINI
and JOHN DOE ONE THROUGH
TEN,
Defendants.
JUSTICE LaVECCHIA, concurring in part and dissenting in part.
This appeal requires us yet again to interpret the Law Against Discrimination, N.J.S.A.
10:5-1 to –49 (LAD). Specifically, we must determine whether the LAD carries its
own standard of proof for an award of compensatory damages for emotional distress
caused by sexual harassment in the workplace. In my view, such a LAD
claimant must demonstrate entitlement to damages for infliction of emotional distress caused by
sexual harassment under the proof requirements set forth in our decision in Taylor
v. Metzger,
152 N.J. 490 (1998). In the absence of textual support in
the LAD for a lesser standard of proof than that which we established
in Taylor for the common law tort of infliction of emotional distress committed
in a harassment setting, I would not lessen the proof requirements for compensatory
damages.
I.
The cause of action for intentional infliction of emotional distress, which we first
recognized as part of our common law in Buckley v. Trenton Saving Fund
Society,
111 N.J. 355 (1988), was reformulated for the specific context of harassment
claims under LAD in Taylor, supra, 152 N.J. at 508-21. Taylor squarely brought
before the Court the standard to be applied to claims of intentional infliction
of emotional distress where that cause of action is based on discriminatory conduct
and joined with causes of action for discrimination under the LAD. Writing for
the Court, Justice Handler expanded the test for intentional infliction of emotional distress
articulated in Buckley, supra, which required a plaintiff to “establish intentional and outrageous
conduct by the defendant, proximate cause, and distress that is severe.” 111 N.J.
at 366.
See footnote 1
Our expansion of
Buckley in Taylor was manifest;
See footnote 2 however, we did not alter
the basic requirement that only “severe” distress will sustain an award of compensatory
damages under our common law, and mentioned specifically that the plaintiff in
Taylor
both “sought medical treatment for [her] emotional anguish” and “claimed to suffer harm
that was both severe and enduring.” Id. at 515. Although we did not
hold that a claim for compensatory damages for emotional distress arising in the
context of a LAD discrimination claim specifically required expert or medical corroboration as
a matter of law, we held that that the plaintiff had submitted sufficient
evidence to “permit[] a rational factfinder to conclude that she suffered severe emotional
distress.” Ibid. Cf. Rendine v Pantzer,
141 N.J. 292, 312-13 (1995) (citing Bolden
v. Southeastern Pa. Transp. Auth.,
21 F.3d 29, 34 (3d Cir. 1994) (noting
that LAD claim for emotional distress damages, like analogous federal civil rights claims,
does not require, as matter of law, expert testimony to corroborate claimant’s alleged
emotional distress)).
In my view, the majority’s decision renders Taylor, which post-dated the 1990 LAD
amendments that the majority and the Appellate Division find to be so persuasive,
a nullity. In Taylor, Justice Handler painstakingly analyzed the circumstances in which a
plaintiff brings both a claim of discrimination under the LAD and a common
law claim for intentional infliction of emotional distress, and both claims arise from
the same discriminatory conduct. It is curious that our Court would have gone
to such lengths to canvass decisions from around the country concerning claims of
intentional infliction of emotional distress based on discrimination if one of the very
causes of action then before it, a discrimination claim under the LAD, subsumed
the entire analysis. The Court’s careful analysis in Taylor is now inoperative in
that the majority holds that the LAD authorizes a standard for obtaining compensatory
damages for emotional distress that is far below that articulated in Taylor. As
demonstrated below, this case is indistinguishable from, and should be controlled by, our
holding in Taylor.
II.
Plaintiff’s seven-count Complaint included three counts against Bob Ciasulli Mack Auto Mall, Inc.
(Mack): Count I for hostile work environment created by sexual harassment and discrimination,
in violation of the LAD; Count II for constructive discharge based on sexual
harassment and discrimination, in violation of the LAD; and Count VII for intentional
infliction of emotional distress. Each count “demand[ed] judgment against [Mack] as follows: (1)
Compensatory Damages[;] (2) Punitive Damages[;] (3) Equitable relief to the fullest extent permitted
by the LAD; (4) Costs of Suit; (5) Attorney’s Fees to the fullest
extent permitted by the LAD and the law; (6) Lawful Interest; [and] (7)
Such other relief as the Court deems equitable and appropriate.”
Before trial, Mack filed a motion for summary judgment to dismiss Count VII
for common law intentional infliction of emotional distress, and to compel discovery concerning
the nature of plaintiff’s asserted emotional trauma. Plaintiff did not oppose the motion
to dismiss Count VII.
See footnote 3 Thus, we note that the common law emotional distress
claim was dismissed from plaintiff’s action, and she proceeded to trial only on
Counts I and II.
The ensuing jury trial spanned nearly two weeks. During trial, there was ample
testimony concerning the outrageously hostile and discriminatory environment at Mack’s place of business,
which both the majority,
ante at ___ (slip op. at ___), and the
Appellate Division have well detailed. Tarr, supra, 360 N.J. Super. at 268-70. The
vivid portrayal of an “abusive environment” that plaintiff endured in the workplace was
fairly described by the Appellate Division as “despicable, insulting, reprehensible, crude, gross, demeaning,
and contemptible[.]” Id. at 270. Despite that portrayal, plaintiff’s
testimony respecting her response . . . was not extensive. Although she apparently
had mental health care after leaving Mack . . ., she chose not
to offer expert testimony. She testified only to her acute embarrassment and humiliation,
[caused by one co-worker’s] remarks in the presence of persons not employed by
the dealership, [that] made her turn ‘beet red’ and ‘want to crawl under
my desk.’
Plaintiff also testified that she would cry “‘all the way home from being frustrated, from being intimidated, from feeling that you couldn’t breathe around there [but you were gonna get yelled at for something or you were in fear of losing your job].’” Ibid. See footnote 4
At the close of plaintiff’s case-in-chief, Mack moved to strike all evidence of plaintiff’s emotional distress from the jury’s consideration on the LAD claims. The trial court granted Mack’s motion, ruling from the bench, in pertinent part, as follows:
But I think you’re talking about recovering in a case like this for emotional distress, I think that you need more than a temporary upsetment. And certainly if you’re trying to recover for long-term medically diagnosed emotional injury or psyche injury, that that’s obviously something that requires an expert opinion, and that’s not here.
But the cases also talk about, for example, the emotional distress that is naturally attendant to somebody who suffers an injury. That’s something the jury can consider. In this particular case the allegation is that the plaintiff – or the plaintiff testified that on occasion she would cry as a result of the treatment that she received at work, and I don’t know that that really even rises to the level of being the type of injury that in the absence of expert testimony which would then indicate some other type of treatment, that the jury is free to assess an award.
The jury returned a verdict finding that plaintiff was the victim of sexual
harassment, including “that the working environment was intimidating, hostile and abusive.” However, the
jury did not award any compensatory damages to plaintiff, based on its determination
that she suffered no past or future lost earnings as a result of
defendant’s sexual harassment. Therefore, no punitive damages were awarded.
Tarr, supra, 360 N.J.
Super. at 267; see generally N.J.S.A. 2A:15-5.13c (stating that punitive damages are available
only if compensatory damages, rather than nominal damages, have been awarded). The trial
court did award plaintiff attorney’s fees pursuant to N.J.S.A. 10:5-27.1, “concluding that because
plaintiff had proved a sexually harassing hostile workplace, she was a prevailing party
despite her failure to prove damages.” Tarr, supra, 360 N.J. Super. at 267.
In a motion for a new trial pursuant to Rule 4:49-1(a), plaintiff again
raised the issue of compensatory damages for emotional distress, asserting that 1990 amendments
to the LAD created a lower threshold for obtaining compensatory damage for emotional
distress. The trial court denied plaintiff’s motion, ruling from the bench, in relevant
part, as follows:
[T]he [1990] amendments . . . I interpret pretty clearly as not expanding
the types of damages that somebody can have, but basically recognizing that an
employee would have damages that might reasonably flow from an act of discrimination
that could be compensable and that could be the subject of compensatory damages.
What are the purposes of compensatory damages? Compensatory damages are intended to make
a litigant whole for a loss, no more, no less. Compensatory damages are
not intended to punish a litigant for the wrongdoing but rather to make
a party whole. Really, the plaintiff did not testify as to any other
types of loss.
I guess the question is whether or not – I think the amendments because they use the term, “physical and emotional distress,” and in some cases, “severe emotional trauma,” that they are talking about a level that goes beyond just a temporary upsetment. That was the term that I used. Granted, we may not be talking about something that requires a showing of medical treatment or medication in order to meet the emotional distress things. By analogy, I would say that in a personal injury action emotional distress standing alone with nothing else is generally not compensable. Emotional distress attendant to other factors like an emotional distress that one endures as a natural consequence of an injury would be an element of compensatory damages because in order to reconstruct the plaintiff, in effect, before the harm is done, you’re recompensing [him or her] for a loss. In that case, the loss of their emotional distress. But, really, the plaintiff in this case didn’t really go into any detail as to whether or not her emotional distress, if any, was caused by a frustration as the result of the job or whether it was as to other factors, or whether it rose to the level of being any type of recognized level of emotional distress that we recognized in the law. I don’t think that when the Legislature amended the law in 1990 that it [in]tended to reduce the bar and say that litigants in [LAD] cases were going to be treated differently than other litigants in asserting common law claims founded upon emotional distress. That was why I found that there really was no testimony in the case to support a claim for emotional distress.
* * * *
The Legislature never intended to create a new form of damages not recognized
in common law, but [it] did intend to codify the availability of damages
that were normally available to the plaintiff as a function of common law
in a personal injury type of action, tort or contract. The reason is
that you have to remember why they did what they did in 1990,
and that was to respond to the Shaner[ v. Horizon Bancorp.,
116 N.J. 433 (1989)] decision which raised, in effect, almost like as an afterthought the
question of whether or not damages that are recognized at common law should
be the prime focus of [the LAD].
So I’m not saying that emotional distress damages have to be proven by
expert testimony, although that would be preferable, or that the plaintiff has to
show that she sought treatment or anything for it. But she has to
testify as to something that is related to the incident in question and
it has to be something more than just sort of a passing problem.
And that’s what happened in this case was that she made a passing
reference to crying in the car and there was basically no testimony to
indicate that that was related to the incident in question or to other
problems or that it was substantial, that it was significant or that it
caused her any continuing emotional distress.
The Appellate Division reversed the trial court on the issue of compensatory damages
for emotional distress by relying on Gray v. Serruto Builders, Inc.,
110 N.J.
Super. 297, 316-17 (Ch. Div. 1970), in which a chancery court awarded nominal
damages to a plaintiff based on racial discrimination, and Zahorian v. Russell Fitt
Real Estate Agency,
62 N.J. 399, 412 (1973), in which this Court affirmed
an “incidental award [to the plaintiff] for pain and suffering” recommended by a
Hearing Examiner with the New Jersey Division on Civil Rights (Division) and adopted
by the Division Director. From those earlier decisions, the Appellate Division extrapolated that
a plaintiff does not have to prove severe and substantial emotional harm to
reach the jury on compensatory damages for emotional distress in the context of
the LAD. Id. at 276-77. It found that the 1990 amendments to the
LAD “confirmed” the “authority” of Gray and Zahorian. Id. at 273. We granted
defendants’ petition for certification.
178 N.J. 29 (2003).
III.
Persons seeking redress under the LAD either may file a complaint (1) with
the Division or (2) in the Superior Court of New Jersey, by jury
trial if requested. N.J.S.A. 10:5-13. Pursuant to the LAD, “[a]ll remedies available in
common law tort actions shall be available to prevailing parties. These remedies are
in addition to any provided by this act or any other statute.” Ibid.
(emphasis added). Those two sentences mandate that for LAD claims, in addition to
the equitable remedies available to courts and the Division under N.J.S.A. 10:5-17, prevailing
parties also may seek traditional tort remedies. Plaintiff’s thesis is that that language
in N.J.S.A. 10:5-13 expresses a legislative intent to lower, in LAD actions, the
proof standard that otherwise would apply in a common law tort action to
obtain compensatory damages for emotional distress caused by discriminatory conduct. However, that theory
is not supported by text, legislative history, or prior decisional law.
We turn first to the legislative history of the LAD to examine whether the Legislature intended the disputed language in N.J.S.A. 10:5-13 to apply a standard of proof lower than that which the common law requires for an award of compensatory damages for emotional distress caused by discriminatory conduct.
When the LAD was enacted in 1945, an action under the statute could be brought only before the Division. In 1979, amendments to the LAD authorized, “[t]he right to bring judicial action as an alternative to administrative relief.” L. 1979, c. 404. In Shaner, supra, we analyzed the impact that the 1979 amendments to the LAD had on causes of action and remedies available under the statute. 116 N.J. at 437-46. Although we observed that the Division had awarded compensatory damages for economic losses, id. at 439 (citing Jackson v. Concord Co., 54 N.J. 113, 126 (1969), and incidental damages for “pain and suffering or personal humiliation,” ibid. (citing Zahorian, supra, 62 N.J. at 416), we emphasized that such monetary awards “should not be ‘a primary item’ of relief . . . but must be ancillary to and correlated with the grant of broader remedies, which in combination are ‘reasonably calculated to eliminate the effects of the discrimination.’” Ibid. (quoting Zahorian, supra, 62 N.J. at 413, 416).
We characterized our courts’ powers under the LAD as largely coextensive with those vested in the Division. Id. at 440. The broad scope of those powers, including both “an authority that parallels the Division’s enumerated powers, which are directed to the rectification of work-place discrimination,” ibid., and the ability to award incidental or nominal monetary awards, ibid. (citing Zahorian, supra, 62 N.J. at 413-14; Gray, supra, 110 N.J. Super. at 317), led us to conclude that a court’s power to enforce the LAD was equitable in nature. Id. at 441. We found that granting the right to a jury trial could subvert the LAD’s goals of providing broad remedies and an efficient forum to vindicate grievances, given the “attendant delays and inherent limitations of the scope of jury verdicts.” Ibid. Shaner thus held that there was no right to a jury trial under the LAD. Id. at 446.
Almost immediately thereafter, the Legislature amended the LAD to overrule Shaner. Bipartisan sponsors advanced an amendatory bill that added a right to jury trial for LAD actions, as well as the currently disputed language to N.J.S.A. 10:5-13. L. 1990, c. 12, § 2. In addition, the bill inserted a paragraph in the decla