dissenting.
I harbor no disagreement with the majority that the Legislature created an important and necessary remedy for whistle-blowers through the enactment of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. CEPA advances the salutary social policies of ensuring that employees can report harmful *264practices without fear of losing their jobs, and that they can continue to act as public watchdogs for employer action that is contrary to law or public policy. See N.J.S.A. 34:19-3 (prohibiting retaliation against whistle-blowers and enumerating protected employee activity). To that end, CEPA is powerful medicine. Its remedies are designed to be prompt and to be particularly protective of those who wish to remain employed or to regain employment. See N.J.S.A. 34:19-5 (fixing one-year period for filing suit and defining available remedies). Specifically, CEPA identifies the remedies of an injunction to restrain continued violation of the Act; reinstatement to one’s position or its equivalent; reinstatement of benefits and seniority rights; compensation for lost wages, benefits, and other remuneration; costs and attorney’s fees; and a civil fine and/or punitive damages. Ibid. It also permits the award of “remedies available in common law tort actions” to prevailing plaintiffs,1 ibid., and therein lies my disagreement with the majority’s view in this matter.
The result reached by the majority allows a plaintiff to claim adverse employment action—here specific claimed acts of retaliation—and obtain not only relief from those acts in the workplace but also, after leaving the workplace for retirement, to obtain front and back pay damages without satisfying the requirements for proving constructive discharge. My view of the proper application of CEPA’s inclusion of “remedies available in common law tort actions” is profoundly different from that of the majority. By that language, CEPA was not transformed into a new configuration of those traditional tort remedies; yet that is exactly the result achieved today. The majority’s analysis invests CEPA with a new application, one that, I believe, loses sight of the integrated form and meaning of this very important piece of social legislation. Because I cannot endorse the majority’s analysis or judgment, however much I might agree about the high purpose and the *265social importance of CEPA, I respectfully dissent. Although not convincing for my colleagues in the majority, I feel compelled to record the essential reasoning behind my disagreement.
I.
This Court’s grant of certification was limited to a single question: whether CEPA limits damages in the form of front and back pay to circumstances in which plaintiff proves actual or constructive discharge. Donelson v. DuPont Chambers Works, 203 N.J. 95, 999 A.2d 464 (2010).
In this case, plaintiff suffered the last act of retaliation, namely being sent for the “fit for duty” examination, in 2004. That became the lynchpin for his CEPA litigation, which was timely filed in 2005 while he remained employed. That plaintiff filed his CEPA action while still employed is not uncommon, and is in part why CEPA permits injunctive remedies. Such remedies ensure that, going forward, a non-retaliatory workplace is available to the whistle-blowing employee who remains on the job. In this matter, plaintiff asserted that in September 2006 he was assigned to work alone, something he regarded as further retaliation but which the employer justified as a means of removing plaintiff from interaction with the supervisor about whom he had complained. Plaintiff continued to remain employed, while discovery went on, until he took a disability retirement in December 2007. He then sought to obtain compensation for lost wages during the period from his retirement forward, as additional consequential damages from the earlier retaliatory acts that, in his complaint, he claimed against DuPont. He did not plead constructive discharge and specifically declined to do so when the question was pressed by the trial court.
In Shepherd v. Hunterdon Developmental Center, this Court considered the relationship between a continuing series of acts and a constructive discharge claim in the context of a Law Against Discrimination (LAD)2 hostile work environment case. 174 N.J. *2661, 803 A.2d 611 (2002). There, the Court first concluded, as to plaintiff Saylor, that the series of acts he asserted to be discriminatory were minimally sufficient to withstand a motion for summary judgment substantively and therefore saved his claim from dismissal based on the bar of limitations. Id. at 26, 803 A.2d 611. Turning to his claim that his decision to take an early retirement could qualify as constructive discharge, with the resulting, albeit unspoken, front and back pay claim, the Court concluded that it could not. Id. at 29, 803 A.2d 611. Although set in the LAD context, our decision had little to do with the LAD, specifically, but much to do with the interplay between a hostile work environment claim and one for constructive discharge in general.
The Court noted that the ordinary standard for constructive discharge recognizes that all employees have an obligation to do what is necessary to maintain employment, id. at 28, 803 A.2d 611 (citations omitted), with the result that only an employee who can demonstrate that conditions were “so intolerable” that he was compelled to leave and join the ranks of the unemployed can recover for wrongful discharge. Ibid, (citing Jones v. Aluminum Shapes, Inc., 339 N.J.Super. 412, 428, 772 A.2d 34 (App.Div.2001)). Noting'that the LAD permits recovery based on hostile acts that are “severe or pervasive,” this Court commented that there are “subtle but discernible differences between the standard for a hostile work environment and the standard for a constructive discharge.” Ibid. That is, the subset of LAD claims resting on constructive discharge has to meet both the LAD test that, in general, the employer knowingly permitted conditions of discrimination that were “severe or pervasive” and that they were also “so intolerable that a reasonable person subject to them would resign.” Id. at 27-28, 803 A.2d 611 (quoting Muench v. Twp. of Haddon, 255 N.J.Super. 288, 302, 605 A.2d 242 (App.Div.1992)) (quotation marks omitted). The analysis was supported by Title VII jurisprudence to like effect. Shepherd, supra, 174 N.J. at 28-29, 803 A.2d 611 (citing EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 331-32 (7th Cir.2002); Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 301 (5th Cir.2001)); see Pa. State Police v. *267Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 2351, 159 L.Ed.2d 204, 216 (2004) (noting that constructive discharge “inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?”).
In applying that test to Saylor, because the discrete act to which he pointed for constructive discharge was insufficiently egregious and because his course of conduct claims were only barely enough to get him past summary judgment on his LAD hostile work environment claim, we concluded that he could not meet the standard for constructive discharge. Shepherd, supra, 174 N.J. at 28-29, 803 A.2d 611. The policy rationale that underlies the Shepherd framework is clear, because any alternate reading of the interplay between the LAD and constructive discharge would turn every hostile work environment claim into one that would support a decision to leave one’s employment.
II.
Plaintiff sought to accomplish two things through this appeal. First, he argued for disapproval of Shepherd because the standard it set was asserted to be inconsistent with CEPA’s goal of protecting and encouraging whistle-blowers. Second, in response to our post-argument inquiry whether the constructive discharge standard should be altered in CEPA actions involving a plaintiff who has been psychologically damaged, he asked that we adopt the following different standard in CEPA matters, namely that “[a]n employee is constructively discharged when he or she provides objective evidence of a medical or psychological condition caused by the employer’s conduct or work environment which renders the employee [on the basis of a subjective standard] incapable of continuing to work in defendant’s workplace.” The majority’s decision takes neither tack overtly; however, while employing an asserted “plain language” application of CEPA’s other tort remedies, it has effectively altered, for CEPA plaintiffs, Shepherd’s standard for securing the front and back pay relief that is rightful*268ly available to a former employee only for a constructive discharge.
Plaintiff’s argument seeking disapproval of Shepherd rested on policies relating to encouraging CEPA plaintiffs and protecting them from retaliation by using broad readings of the available remedies. The flaw in that argument lies in the assertion that the Court in Shepherd in some fashion “raised the standard of proof for constructive discharge.” In fact, the Court did hot do so; we simply acknowledged that there is a preexisting body of tort law fixing the standard for that claim and, further, recognized that the LAD did not erase it. See Shepherd, supra, 174 N.J. at 27-29, 803 A.2d 611.
The same is true of CEPA: it did not erase or alter the standard for constructive discharge. The Act identifies available remedies, including those generally injunctive in nature, and permits ordinary tort remedies as well, but it does not expand or supplant them. The remedies are available to the greatest extent possible, but those sounding in tort have to be tethered to the underlying tort in its traditional formulation.
There is a relatively well-established body of law that limits constructive discharge claims, and in Shepherd this Court was careful to recognize that precedent and to explain why the standard is what it is. Shepherd was a carefully balanced opinion that evaluated the important policy interests at stake when assessing who should be entitled to front and back pay damages notwithstanding the individual’s determination to leave a job. Those policy considerations include encouraging an employer to remedy, and remedy quickly, the complained of retaliation or discrimination from within, and encouraging the employee to do what is necessary and reasonable to stay employed. As we said in Shepherd, supra:
[A]n employee has the obligation to do what is necessary and reasonable in order to remain employed rather than simply quit. A trial court should consider the nature of the harassment, the closeness of the working relationship between the harasser and the victim, whether the employee resorted to internal grievance *269procedures, the responsiveness of the employer to the employee’s complaints, and all other relevant circumstances.
[174 N.J. at 28, 803 A.2d 611 (quoting Shepherd v. Hunterdon Developmental Ctr., 336 N.J.Super. 395, 420, 765 A.2d 217 (App.Div.2001)).]
For those reasons, courts look not at how the plaintiff has been damaged, psychologically or otherwise, but rather, assess objectively the conduct to which the plaintiff was subjected and the conditions under which the plaintiff was working. As DuPont concisely, and I believe appropriately, argued in this matter: “[F]or those policy considerations to have any meaning, the plaintiff must be objectively reasonable in his reaction to the retaliation, [that is,] objectively reasonable in deciding he can no longer endure working, before the court will let him cast blame on the employer and collect damages flowing from the termination of employment that he initiated.”
There is no rationale that would support a different analysis under CEPA than that which we recognized in Shepherd. Although the Act directs that the remedies be available “to the fullest extent possible,” N.J.S.A. 34:19-5, it does not suggest that they be expanded beyond their traditional formulation. Stripped to its essence, the keystone to the majority’s contrary conclusion, explained ante at 257-59, 20 A.3d at 392-93, is unsound.
Specifically, the majority’s analysis conflates proximate causa,tion and the extent of damages.3 In so doing, it unhinges the fundamental tort-law notion that a plaintiff is entitled to only those *270compensatory remedies that will make him whole in regard to the harms actually and proximately caused by defendant. See Caldwell v. Haynes, 136 N.J. 422, 433, 643 A.2d 564 (1994). After explaining that a person has a right to recover the entirety of his diminished earning capacity caused by another’s tortious conduct, the majority concludes that “[t]o the extent [defendant] proximately caused Seddon to suffer a mental injury incapacitating him from his former employment, he has ‘the right to recover damages for diminished earning capacity.’ ” Ante at 258-59, 20 A.3d at 392-93. The statement assumes the answer to the essential legal question: When has a defendant proximately caused a plaintiff to lose his employment and thereby suffer a diminished earning capacity?
We answered this question clearly in Shepherd, explaining that lost wages are caused by allegedly discriminatory or retaliatory conduct only when discharge, either actual or constructive, can be proven. In other words, where a plaintiff walks away from his employment, a defendant has caused (and is liable for) the coincident loss of wages only if the defendant’s conduct was severe or pervasive enough to amount to constructive discharge.4 CEPA *271does not purport to abrogate the basic and eommonsense notion that when an employee voluntarily resigns or retires, the employee himself, and not the employer, has caused the cessation of paychecks.
Moreover, the majority’s reasoning rests on a fundamental flaw revealed through its baseball player analogy. The baseball player is allowed to recover as against a tortfeasor lost income as part of economic damages because common law tort concepts allow it. See Caldwell, supra, 136 N.J. at 433, 643 A.2d 564 (“An injured party has the right to be compensated for diminished earning capacity. The measure of damages for tort recovery encompassing diminished earning capacity can be based on the wages lost as a result of the defendant’s wrongdoing. That measure includes the value of the decrease in the plaintiffs future earning capacity.” (citations omitted)); see also Restatement (Second) of Torts: Damages § 901 (1979) (“[Wjhen there has been harm to earning capacity, the law can indemnify the plaintiff for pecuniary loss[.]”). However, until this Court’s decision in Pierce v. Ortho Pharmaceutical Corporation, no like tort concept allowed an employee to recover similar lost wages from a former employer. 84 N.J. 58, 65-66, 417 A.2d 505 (1980).
In Pierce, this Court, recognizing that the common law has “the capacity ... to develop and adapt to current needs,” first created a common law cause of action in tort for “wrongful discharge when the discharge is contrary to a clear mandate of public policy.” Id. at 71-72, 417 A.2d 505; see also Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 102, 961 A.2d 1167 (2008) (“This Court first recognized a common law cause of action for retaliatory discharge when we decided Pierce in 1980.”); D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119, 927 A.2d 113 (2007) (“[W]e held [in Pierce ] that an at-will employee, wrongfully discharged ... has a *272common law cause of action against an employer.”). That alteration in the law reflected the reality that under the common law, employees were all at-will and had no right to lost wages following termination of employment. As we explained in Tartaglia, supra,
[s]een in its historical context, Pierce created an avenue for an at-will employee, who otherwise had little, if any, means of redress for termination, to assert that his or her discharge was wrongful____We viewed [Pierce’s] claim as being in the nature of constructive discharge and considered whether there were circumstances, apart from claims based on discrimination, in which termination of an at-will employee could be wrongful.
[197 N.J. at 104-05, 961 A.2d 1167.]
And, “we concluded that some non-discriminatory firings were nevertheless actionable.” Id. at 105, 961 A.2d 1167.
Of course, CEPA codified the Pierce remedy5 and, hence, this cause of action is brought under that statutory remedy. But the majority’s misplaced reliance on tort law that permits a lost-earnings or diminished-earnings-capacity economic recovery as against a tortfeasor does not translate into support for relief in the circumstances of this present suit by plaintiff against his former employer, where constructive discharge was neither pled nor proved. In short, there is no common law avenue, outside of proving wrongful discharge or constructive discharge, for such economic damages to be awarded as against a former employer.
III.
As noted, plaintiff did not just fail to allege constructive discharge, he repeatedly disavowed it. As a result, the jury received no notice that plaintiff was claiming that he had been constructively discharged, like it received with respect to his co-plaintiff, Mr. Donelson, who pled constructive discharge and a CEPA violation (plus intentional infliction of emotional distress). Thus, the jury received no instruction on how to assess whether DuPont should *273be held responsible for plaintiffs departure as it did with respect to Mr. Donelson’s constructive discharge claim. Nevertheless, over DuPont’s objection, plaintiff was permitted to introduce evidence concerning the damages that flow from a constructive discharge, namely the wages he would have earned had he not retired.6 There was no basis for the jury to award plaintiff the economic damages that might stem from the termination of his employment because no claim alleging a wrongful termination of employment, nor instructions for assessing such a claim, had ever been put to the jury. In such a setting, the verdict was not properly reached and the Appellate Division was correct in setting it aside. See, e.g., Toto v. Princeton Twp., 404 N.J.Super. 604, 614-15, 962 A.2d 1150 (App.Div.2009) (rejecting unpled constructive discharge claim that was asserted through backdoor means of “giving it another name”).
IV.
In this matter, a constructive discharge claim was cloaked as a generalized CEPA retaliation claim. By camouflaging his constructive discharge allegation as a nondescript CEPA violation, plaintiff reaped the benefit of the more generous scope of relief available for constructive discharge claims without enduring the more onerous burden of proof associated with that cause of action. Where plaintiff made a conscious choice not to plead constructive discharge, CEPA should not allow backdoor access to front and back pay damages asserted to accrue post-retirement. In my view, the majority errs in concluding that CEPA’s allowance for “other tort remedies” permits a CEPA plaintiff to receive a tort’s remedy merely by filing a CEPA action claiming an adverse employment action without meeting the ordinary test for the *274“other” tort whose remedy is invoked. CEPA’s goals are not advanced by creating a far lighter standard of proof than the one imposed for constructive discharge.
JUSTICE RIVERA-SOTO, abstaining.
. I abstain for the reasons previously expressed in Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Co., L.P., 204 N.J. 569, 585-587, 10 A.3d 211 (2010) (Rivera-Soto, J., dissenting): although not “necessary,” a condition precedent specifically required by the New Jersey Constitution, N.J. Const. art. VI, § 2, ¶1, a judge of the Superior Court was temporarily assigned to serve on the Supreme Court, and that judge cast a vote that affected the outcome of this appeal.
For reversal/reinstatement/remandment—Chief Justice RABNER and Justices LONG, ALBIN and Judge STERN (temporarily assigned)—4. For affirmance—Justices LaVECCHIA and HOENS—2. For abstainment—Justice RIVERA-SOTO—1.Because of CEPA's election of remedies provision, see N.J.S.A. 34:19-8 (deeming filing of CEPA suit as election of remedies, effectively barring parallel litigation arising from common law theories), the breadth of the remedies, as a practical matter, must be at least coextensive with ordinary tort remedies.
N.J.S.A. 10:5-1 to-49.
For example, in discussing when an alleged tortfeasor has proximately caused an injured person to suffer a diminished earning capacity, the majority offers a baseball example typically used to illustrate the eggshell plaintiff rule, a maxim about the extent of damages and not about proximate causation. Ante at 258-59, 20 A.3d at 392-93. The example is typically utilized to show that a baseball player with a large salary might be entitled to tremendous damages if injured because of his idiosyncratic earning potential. However, proximate cause requires a different analysis, assessing not the degree of loss, but whether defendant's conduct caused the loss in earning capacity. The majority fails to recognize that the baseball player may not recover his future earnings if he could have continued to play at the same level but chose voluntarily to retire from the sport.
Federal courts have consistently followed this rule of causation, holding that to receive an award for lost wages, a plaintiff who walks away from his employment must prove constructive discharge. See, e.g., Lulaj v. Wackenhut Corp., 512 F.3d 760, 767 (6th Cir.2008) ("[T]he district court was correct to reduce, as a matter of law, the jury award for front pay to zero to conform to its finding of no constructive discharge.”); Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 (3d Cir.2006) ("[A] successful hostile work environment claim alone, without a successful constructive discharge claim, is insufficient to support a back pay award. Put simply, if a hostile work environment does not rise to the level where one is forced to abandon the job, loss of pay is not an issue." (footnote omitted)), cert. denied, 551 U.S. 1141, 127 S.Ct. 2985, 168 L.Ed.2d 720 (2007); Hertzberg v. SRAM Corp., 261 F.3d 651, 659 (7th Cir.2001) ("A victim of discrimination that leaves his or her employment as a result of the discrimination must show either an actual or constructive discharge in order to receive ... back and front pay[J”), cert. denied, 534 U.S. 1130, 122 S.Ct. 1070, 151 L.Ed.2d 973 (2002); Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1237 (10th Cir. 2000) ("Because the jury rejected the Plaintiffs’ claims that they were constructively discharged, the district court did not err in concluding that they were not entitled to back or front pay.”); Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1219 (8th Cir.1997) (”[I]n the absence of constructive discharge, a plaintiff *271is not 'made whole' by the equitable remedy of backpay."); Jurgens v. EEOC, 903 F.2d 386, 389 (5th Cir.1990) ("[I]n order for an employee to recover back pay for lost wages beyond the date of his retirement or resignation, the evidence must establish that the employer constructively discharged the employee.”).
The common law action still exists as an alternate track by which a plaintiff may pursue relief; however, a plaintiff relying on CEPA exercises an election of the statutory remedy in lieu of the common law wrongful discharge action. See N.J.S.A. 34:19-8.
Although plaintiff retired on disability pension, that does not suffice as proof that the employer caused a constructive discharge, at least not on this record where no such showing was made due to plaintiffs pleading strategy. We note that plaintiff did plead an intentional infliction of emotional distress claim, but the jury did not award any pain and suffering damages.