The acting Attorney General of New Jersey is proposing new rules that will affect all professionals who hold a license under the Division of Consumer Affairs. If the rules are adopted, the professional licensing boards, including the State Board of Dentistry, will have the authority to discipline professionals who in the course of their professional conduct engage in unlawful discrimination or retaliation against patients or employees.¹

As stated in the proposal, the increased need for health care during the COVID-19 pandemic has exposed discriminatory behavior among medical professionals. Under the current law, a professional board may suspend, revoke or refuse to admit a licensee who the board has found to have "engaged in professional or occupational misconduct."² For most of the professional boards, however, the criteria for such misconduct does not include discrimination or retaliation towards patients or employees. Presently, only three New Jersey state boards have clear anti-discrimination regulations.³

In the adoption of these new rules, the acting Attorney General seeks to make clear and firmly establish that unlawful discrimination or retaliation towards patients or employees will also constitute misconduct. The professional boards will have the authority to make any licensee who engages in such misconduct subject to professional discipline.

The guide for determining what is unlawful discrimination or taking retaliatory action are the New Jersey Law Against Discrimination, (NJLAD)⁴ and other Federal or State civil rights or anti-discrimination laws.

The Proposed Rules consist of three general sections:

I. The first part of the proposed rule defines what is prohibited discrimination and what is reprisal towards employees and the public.⁵

• "Engage in prohibited discrimination" towards Employees, includes, but is not limited to refusing to hire or to bar or discharge due to race, marital status, religion, sexual identity or expression or liability for service in the Armed forces.

• "Engaging in prohibited discrimination" towards the Public, includes but is not limited to the owner of a place of public accommodation, directly or indirectly refusing or withholding the advantages of the accommodation due to the race, creed, color, national origin, ancestry, marital status, civil union status, domestic partnership status, sex, gender identity or expression, affectional or sexual orientation, disability or nationality of that person.

• "Reprisal" is taking retaliatory action against a person who does not enter into an agreement or contract that contains a provision to be against public policy and unenforceable. Additionally, reprisal includes taking retaliatory action because a person has exercised rights pursuant to the NJLAD or other Federal or State civil rights or anti-discrimination law, or coercing, intimidating threatening, or interfering with any person who has exercised rights, or encouraged another to exercise rights, under such a law.

II. The second part of the proposed rule, in summary, establishes that a licensee who has been found in an administrative proceeding before a Board or the Office of Administrative Law (OAL),⁶ or by a court or State or Federal Agency to have engaged in prohibited discrimination against any current or prospective patient or employee will be deemed to have engaged in professional misconduct and may be subject to discipline.⁷

III. The third part of the proposed rule, in summary, states that a licensee who has been found by the Board, or the Office of Administrative Law, or a court or State or Federal agency to have engaged in a reprisal against any person, has committed professional misconduct and may be subject to discipline.⁸

Updates to follow.

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1  Proposed New Rules: N. J. A.C. 13:45C-4.1, 4.2 and 4.3. Proposal Number: PRN 2022-031.

2  N.J.S.A. 45:1-21.e.

3  Board of Social Work Examiners, N.J.A.C. 13:44G-10.7(e); the Alcohol and Drug Counselor Committee, N.J.A.C. 13:34C-1.9(b)5; and the Board of Psychological Examiners, N.J.A.C. 13:42-10.4(d).

4  (NJLAD), N.J.S.A. 10:5-1 et seq.

5  N.J.A.C. 13:45C-4.1.

6  A licensee may appeal the decision by their Board to the Office of Administrative Law, where an Administrative Law judge may or may not impose discipline upon the licensee. 

7  N.J.A.C. 13:45C-4.2.

8  N.J.A.C. 13:45C-4.3. 

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Dr. Gilman, Esq. is available for presentations to Component Societies and Study Clubs to speak about Dental Ethics and other dental-legal related matters.