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Mis-aimed Discrimination is No Defense to a Violation of New Jersey’s Law Against Discrimination, or the Bigots Who Couldn’t Shoot Straight

New Jersey’s Law Against Discrimination

New Jersey’s Law Against Discrimination (the “LAD”) protects many people, particularly employees, from discrimination because of their race, ethnicity or religion, among other things. Discrimination can take many forms, but includes direct tangible adverse employment actions, such as firing, demotion, etc., and harassment which cause a hostile work environment. In order to constitute discrimination, harassment must be either “severe or pervasive,” and severe or pervasive enough to create a “hostile work environment.”

The Law on Poorly Aimed Discrimination

The law prohibiting discrimination and harassment is well established. However, an issue arose as to whether discrimination or harassment based not on a person’s actual race, ethnicity or religion, but on his incorrectly perceived religion, race or ethnicity is also protected.

The LAD also protects against discrimination or harassment based on disability. As far back as 1982, New Jersey Supreme Court noted in a footnote, Anderson v. Exxon Co., 89 N.J. 483 (1982), that employers could not discriminate based on a perceived disability, even if the employee was not actually disabled. Although that was not the issue in the Supreme Court’s 1982 decision, the Appellate Division shortly thereafter decided another case, affirming the rule that employers could not discriminate based on a perceived, even if an incorrectly perceived, physical disability.

The LAD also prohibits discrimination in housing. In 1987, the Superior Court’s trial division found that a landlord had violated the LAD by refusing to rent an apartment to three gay men (sexual orientation is also protected by the LAD), based on the landlord’s perceived but on the mistaken perception that they would contract AIDS.

The issues were not brought up in the racial, ethnic or religious sphere until 1999, when New Jersey’s Appellate Division held that the LAD’s protections against discrimination because of a person’s perceived protected classifications were not limited to disabilities. In that case, the Appellate Division held that even a non-practicing Jewish police officer was protected against anti-Semetic harassment. However, this did not tackle the issue head on, because, although the employee in that case was actually Jewish, he was not a practicing Jew.

The Anti-Semites Who Couldn’t Shoot Straight

On April 18, 2012, New Jersey’s Appellate Division finally addressed the issue head on, and held squarely that people cannot be discriminated against or harassed because of their employers’ mistaken belief that they were in a protected racial, ethnic or religious category.

Myron Cowher was an employee of Carson & Roberts Site Construction and Engineering. He was not Jewish. However, his two supervisors, described as “bookends, partners,” believed that he was Jewish and unleashed a torrent of anti-Semetic slurs almost defying belief. Some of these comments are too offensive to be repeated, but some of the less offensive ones include: Jew Bag,” “**** you Hebrew,” “Jew b***d,” “Where are [you] going, Jew,” “I have friends in high places, not in **** temple,” “Jew Shuffle,” and “Only a Jew would argue over his hours.”

The two supervisors being sued disputed using some of the terms. However, they admitted that “perhaps” they had commented to Cowher about “Jew money” and using the Hebrew folk song Hava Nagila as the ring tone for one supervisor’s cell phone for calls from Cowher. One of the supervisors, while denying some of the statements, admitted they he had called Cowher a “Jew bag” perhaps 20 times, “I don’t know to be exact.” He also admitted to calling Cowher a “bagel meister,” a “Jew burger” and a ****ing Hebrew.” Cowher asked both men to stop, but they didn’t. He also reported it to their supervisor who told him to just ignore it and it would go away.

What the Court Said: Being a Stupid Bigot Does Not Make Someone a Protected Bigot

The trial court granted summary judgment against Cowher, stating that he could not be protected by the LAD because the alleged harassment was based on his being Jewish, and he was not.

Cowher appealed and the Appellate Division of New Jersey’s Superior Court made short work of that argument. Noting the prior cases, the Appellate Division explained that the LAD is a remedial statute, designed both to compensate those who are discriminated against and to deter discrimination in the first place. To allow conduct like this would do nothing to deter discrimination, and in fact insulate it. The Appellate Division therefore clearly held even a Gentile can recover for anti-Semetic harassment aimed at him.

Anti-Discrimination Policies Don’t Help if the Employer Doesn’t Enforce Them

As its final defense, Cowher’s employer argued that it should not be liable because it had an anti-harassment policy, and a procedure for reporting harassment. The Court also found this to be no defense. It explained that while it is true that New Jersey law does offer a defense to an employer which has an anti-harassment policy procedure in place, the policy must be “effective.” In this case, although the policy may have been handed out to the employees, it was not effective. Indeed, Cowher actually did report the harassment to both the harassers and their supervisor, just as the policy required, but nothing changed. The supervisors ignored it, and their supervisor told Cowher to ignore it and it would go away (it didn’t). This was certainly the epitamy of an ineffective anti-harassment policy. The Court explained that an employer is more likely to succeed on such a defense if it periodically distributes the policies and procedures to workers, that it has an effective and practical process for reporting grievances, that it regularly trains workers, supervisors and managers on how to recognize unlawful harassment and eliminate it, and that it actually and effectively responds to reports of harassment.

However, if an employee actually reports harassment and nothing is done, no policy is a defense.

The Bottom Line

The bottom line is that New Jersey’s Courts finally addressed the issue head on and got it right – bigots cannot get away with discrimination and harassment just because they are stupid.

McLaughlin & Nardi’s New Jersey employment and attorneys are experienced in representing employees in harassment and discrimination claims. Our New Jersey employment lawyers are also are experienced in helping employers establish policies and training to prevent discrimination harassment, and defending employers when claims are made. To find out more, please e-mail us or contact one of our New Jersey employment attorneys at (973) 890-0004.

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