Schall and Barasch LLC


On March 15, 2016, I had the pleasure of appearing before the New Jersey Supreme Court on behalf of the National Employment Lawyers Association of New Jersey in the case of Cuevas v. Wentworth Group.   The case involved two brothers, Ramon and Jeffrey Cuevas, who alleged that they had been subjected to a hostile work environment on account of their national origin and then were terminated from their employment when they raised complaints about how they were being treated. This past month, on September 19, 2016, the Supreme Court issued its decision – upholding a $1.4 million award of emotional distress damages to the two brothers.

The New Jersey Supreme Court’s decision, written by Justice Barry Albin, constitutes not only a terrific vindication for the Cuevas brothers but also a sweeping victory for all employees in the State of New Jersey, as the Court recognized not only the grievous harm that can be caused by employment discrimination, but also the essential role of juries, not judges, in determining the fair amount of damages to be awarded in these cases.

In recognizing the harms caused to New Jersey employees by discrimination, the Supreme Court wrote as follows:

The Legislature intended victims of discrimination to obtain redress for mental anguish [and] embarrassment,” even when their emotional and physical ailments cannot be characterized as severe. Because of the special harm caused by willful discrimination in the workplace, “compensatory damages for emotional distress, including humiliation and indignity . . . , are remedies that require a far less stringent standard of proof than that required for a tort-based emotional distress cause of action.” Specifically, in a [Law Against Discrimination] case, a plaintiff is not required to provide “expert testimony or independent corroborative evidence . . . to support [an] award of emotional distress damages.” Plaintiffs in this case were entitled to “recover all natural consequences of [defendants’] wrongful conduct, including emotional distress and mental anguish damages arising out of embarrassment, humiliation, and other intangible injuries.”

Perhaps even more significantly, the Court in its Cuevas decision restored a fundamental precept of law in New Jersey that some of its prior decisions had begun to erode: that is the role of juries, not judges, to decide the amount of damages to be awarded to plaintiffs who are harmed by the conduct of a wrongdoer in all kinds of cases – not just employment cases – that come before the courts.

In this regard, under New Jersey law, a judge has always been permitted to reduce a jury award in the event he or she finds the award “shocking to the judicial conscience” or a “gross miscarriage of justice” – a very high standard that was intended to be used only sparingly. However, in recent years, it had become more and more common for judges to reduce large jury awards based either on their own “personal experience” or by comparing a jury’s award to other awards that had been issued in supposedly “comparable cases.”

In its Cuevas decision, the Supreme Court has now slammed the brakes on this trend and made clear that it is only in the very rare case – a truly “runaway jury” – that judges may interfere with a jury award.   It wrote as follows:

The preeminent role that the jury plays in our civil justice system calls for judicial restraint in exercising the power to reduce a jury’s damages award. A court should not grant a remittitur except in the unusual case in which the jury’s award is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience. . . .

A judge’s personal knowledge of verdicts from experiences as a private practitioner or jurist is information outside the record and is not subject to the typical scrutiny evidence receives in the adversarial process. The cohort of cases within a judge’s personal knowledge may not be statistically relevant and the reliability of the judge’s knowledge cannot be easily tested. A judge therefore should not rely on personal knowledge of other verdicts. The standard is not whether a damages award shocks the judge’s personal conscience, but whether it shocks the judicial conscience.

We also disapprove of the comparative-verdict methodology that allows parties to present supposedly comparable verdicts based on case summaries. The singular facts and particular plaintiffs in different cases that lead to varying awards of damages are not easily susceptible to comparison. That is especially so because the information about other seemingly similar verdicts is very limited. A true comparative analysis would require a statistically satisfactory cohort of cases and detailed information about each case and each plaintiff. That information is unlikely to be available, and therefore any meaningful comparative approach would be impracticable to implement.

The Court’s decision in Cuevas constitutes a great victory for all the citizens of the State of New Jersey, and in particular, New Jersey’s employees. On behalf of the National Employment Lawyers Association of New Jersey, we are grateful that we at Schall & Barasch had opportunity to help bring about his wonderful result.






Schall and Barasch LLC* Schall and Barasch LLC** Schall and Barasch LLC*** Schall and Barasch LLC Schall and Barasch LLC****

* In every year since 2014, the law firm of Schall & Barasch has been included in the Tier 1 list of best law firms in New Jersey practicing in the field of employment law on behalf of individuals. This list is compiled by U.S. News & World Report. A description of the selection methodology can be found at

** The methodology for the Avvo ratings of Richard Schall and Patricia Barasch can be found at

*** In every year since 2009, Richard Schall has been chosen to be included on the list of Best Lawyers in New Jersey practicing in the field of labor and employment law. The Best Lawyers list is issued by Best Lawyers International. A description of the selection methodology can be found at

**** In every year since 2005, both Patricia Barasch and Richard Schall have been chosen to be included on the list of Super Lawyers in New Jersey practicing in the field of employment law on behalf of plaintiffs. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at

No aspect of these advertisements has been approved by the Supreme Court of New Jersey.