by: Jonathan Meyers
New Jersey state courts are notoriously indulgent to plaintiffs claiming sexual or racial discrimination and will almost never dismiss a sex or race based discrimination case, no matter how meritless. The New Jersey Supreme Court has held that the state anti-discrimination statute (the “NJLAD”) is not meant to be a “civility code” and was not enacted to combat words that are merely discourteous or rude. Instead, it is only supposed to apply to genuine acts of discrimination—where an employee is singled out for bad treatment due to his or her race, gender or religion. Moreover, in cases where the employee/plaintiff has not been terminated, and instead claims to have been subjected to a “hostile work environment,” the plaintiff is required to prove a pattern of improperly-motivated acts (such as sexual comments, racial slurs or jokes) that are so “severe or pervasive” in the workplace that they “alter the conditions of employment.” The logic behind this sentiment makes sense, however, subsequent Supreme Court and Appellate Division decisions seem to have ignored these principles in practice and effectively nullified them.
For example in Taylor v. Metzger, 152 N.J. 490 (1998), the State Supreme Court held that a single patently racist slur spoken by a supervisor to a subordinate was enough to warrant a trial for a hostile work environment case. In the wake of Taylor, trial courts in New Jersey have been increasingly reluctant to throw hostile work environment cases out of court where an employee/plaintiff only alleges that they were subjected to just a few (or even one) racial or sexual comment. Without the ability to nip cases based upon arguable trivialities in the bud on a summary judgment motion, employers are increasingly faced with the prospect of having to defend cases of little or no ultimate value all the way to trial in order to prevail. The high costs of trial can turn these “nuisance” cases into expensive undertakings.
One area, however, where the State Courts are still willing to grant summary judgment, in the absence of real evidence of discrimination, is religion. In Mandel v. UBS/PainWebber, Inc., 373 N.J. Super. 55 (2004), the Appellate Division affirmed the grant of summary judgment against two plaintiffs who alleged a religiously hostile work environment. One plaintiff alleged that a supervisor made the following remark about a fantasy football league being conducted in the office: “This is the gentiles versus the Jews and the plaque should never hang in anybody’s office that doesn’t celebrate Christmas.” The other plaintiff said that she was referred to as a “Jew bch” on one occasion, although the plaintiff was not present when the phrase was uttered and did not learn about it until after she quit to take a job elsewhere.
In Mandel, both plaintiffs left to take other jobs that paid similarly to the ones they left. In addition, the comments that were allegedly made were isolated and clearly were not so severe or pervasive so as to alter the conditions of the plaintiffs’ employment. The Mandel Court cited to Heitzman v. Monmouth County, 321 N.J. Super. 133 for an example of what a religiously hostile work environment really is—namely one in which the harassing conduct is truly substanial (Heitzman’s boss made repeated inquiries into what Heitzman was doing on Friday nights, his dietary restrictions, made comments about a country club that excluded Jews, commented on a “Jewish mile”, and called Hietzman’s vacation destination the “Jewish Alps,” among other comments).
The Mandel court got it right and correctly dismissed a suit in which there just was no real evidence that the employees were actually the victims of a continuing pattern of discrimination that transformed their working environment into a hostile one—rather were only demonstrated that there were one or two stray comments. The Mandel court, however, did note that under Taylor, an employee’s allegation of a single racial comment would normally preclude granting summary judgment. The rationale is that a single racial comment can evoke centuries of cruelty and discrimination, such as when the “N” word is directed toward an Africn-American. As for gender or sex related comments, it is unclear as to whether or not a plaintiff’s allegation of a single offensive remark will be sufficient to preclude an employer from obtaining summary judgment and avoiding trial.
Thus, following Mandel, Heitzman and Taylor, the following sliding scale can be applied to predict the likely behavior the New Jersey State Courts when faced with different types of hostile work environment cases:
1. Nearly every case in which a plaintiff alleges that a patently offensive racial slur was directed towards him will overcome summary judgment and go to trial (even if it is only a single comment).
2. Where a plaintiff alleges to be the victim of a religiously hostile work environment, he will need actual evidence of a true “pattern.” Allegations of isolated or sporadic comments will be unlikely to warrant a trial.
3. Where a plaintiff alleges to been subjected to a sexually hostile work environment, the behavior of New Jersey’s courts cannot be predicted. More conservative judges will likely dismiss cases that seem to be based on infrequent or trivial bases. More permissive judges should still be able to let virtually any plaintiff get to trial.
© 2005, Jonathan Meyers, Esq.