Appellate Division Holds That The New Jersey Law Against Discrimination Prohibits Workplace Harassment Based On Perceived Membership In A Protected Group

Appellate Division Holds That The New Jersey Law Against Discrimination Prohibits Workplace Harassment Based On Perceived Membership In A Protected Group

The New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5-1 - 10:5-30 (the "NJLAD"), prohibits employers, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, sexual orientation, genetic information, gender, gender identity, disability, nationality, military status, or atypical hereditary cellular or blood trait of any person, to refuse to hire or employ or to bar or to discharge or require to retire from employment such person or to discriminate against such person in compensation or in terms or conditions of employment.  See N.J.S.A. §§ 10:5-12(a).

Further, the NJLAD prohibits hostile work environment harassment, which is harassing conduct in the workplace that would not have occurred but for one of the above-mentioned, protected characteristics of the employee (e.g., race or creed) and that is severe or pervasive enough to make a reasonable person with that protected characteristic (e.g., a reasonable person of the involved race or religion) believe that the conditions of the workplace are altered and the working environment is hostile or abusive.

In Cowher v. Carson & Roberts, No. A-4014-10T1 (N.J. App. Div. Apr. 18, 2012), the plaintiff employee sued his former employer and three individual supervisors for hostile work environment religious harassment under the NJLAD.  The plaintiff alleged that the defendants, wrongly perceiving the plaintiff to be Jewish, "directed anti-Semitic comments on a daily basis" for a 16-month period.   Cowher, No. A-4014-10T1, slip op. at 2.

In April 2012, New Jersey's Appellate Division, reversing the trial court's order granting summary judgment in favor of the employer and the plaintiff's two direct supervisors, held that "New Jersey . . . recognize[s] a cause of action premised upon perceived membership in [any] . . . group" protected under the NJLAD.  Cowher, No. A-4014-10T1, slip op. at 2 (emphasis added).

Cowher is the first appellate decision holding that the New Jersey Law Against Discrimination bars hostile work environment harassment, or other discrimination in employment, because of the (mistaken) perception that the plaintiff worker is a member of a class, other than disabled persons, protected by the NJLAD (e.g., the erroneous belief that the plaintiff is of a particular race or religion).  See Heitzman v. Monmouth County, 728 A.2d 297, 302, 321 N.J. Super. 133, 142 (N.J. App. Div. 1999) (in NJLAD action for hostile work environment religious harassment brought by Jewish plaintiff, stating in dictum that "even if plaintiff were not actually Jewish, he could pursue a claim under the [NJ]LAD because there is evidence defendants perceived him to be Jewish"); see also Andersen v. Exxon Co., 446 A.2d 486, 89 N.J. 483, 495-496 n.2, 497 (N.J. 1982) (affirming Director of Division of Civil Rights' order determining that employer violated the NJLAD by refusing to hire the complainant individual based on the mistaken ground that a particular physical handicap prevented the individual from meeting the job's performance requirements; observing that the NJLAD bars discrimination in employment because of " 'medical disabilities which prove on examination to be unrelated to job performance or to be non-existent' ").

Further, the Cowher Court held that, in an NJLAD hostile work environment lawsuit brought "by one who does not belong to the protected group" of which the supervisors or co-workers who harass the plaintiff mistakenly believe him to be a member, the plaintiff employee must show that the harassing conduct is severe or pervasive from the perspective of a reasonable member of the protected group (in Cowher, a Jew), rather than from the perspective of "a reasonable person of plaintiff's actual background" (in Cowher, a non-Jew).  Cowher, No. A-4014-10T1, slip op. at 12.

In Cowher, New Jersey's Appellate Division, applying the above-mentioned standard, held that the defendants' harassing conduct was "undeniably" severe or pervasive enough to make a reasonable Jew believe that the conditions of the workplace are altered and the working environment is hostile or abusive.  Cowher, No. A-4014-10T1, slip op. at 12.

Among other harassing, anti-Semitic conduct, the Cowher plaintiff's two direct supervisors were videotaped making the following comments in the plaintiff's presence: " 'Jew Bag,' '***[] you Hebrew,' 'Jew ***,' 'Where are [you] going, Jew,' 'I have friends in high places, not in fucking temple,' 'Jew Shuffle,' 'If you were a German, we would burn you in the oven,' 'We have Jews and Niggers that work here,' and 'Only a Jew would argue over his hours.' "  Cowher, No. A-4014-10T1, slip op. at 3.

Lexis.com subscribers can access the Lexis enhanced versions of the Cowher v. Carson & Roberts, 425 N.J. Super. 285 (App.Div. 2012), Heitzman v. Monmouth County, 321 N.J. Super. 133 (App.Div. 1999) and Andersen v. Exxon Co., U.S.A., 89 N.J. 483 (N.J. 1982) decisions with summaries, headnotes, and Shepard's.

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