In an important New Jersey employment law ruling, the State Supreme Court held that an employer’s decision to terminate or otherwise take action against an employee influenced by the discriminatory bias of a subordinate, rather than the decisionmakers themselves, nonetheless violates the New Jersey Law Against Discrimination.
Background: Meade’s Employment
In the case of Michele Meade vs. the Township of Livingston, the Court explained that Michele Meade was the Township Manger for Livingston Township from 2015 until she was terminated by the Township Council in 2016. She was the first female Township Manager in Livingston’s history. She was replaced by a male candidate although there were female candidates, and when her replacement quit he was replaced by another male candidate.
The record is long and detailed, but essentially a new Police Chief was appointed during Meade’s tenure. However, this Chief’s performance was alleged to be extremely deficient. He ran training exercises which caused a school to be locked down without notice; he failed to discipline officers for clearly improper behavior; he did not follow orders from the Administrator, including orders made at the request of the Township Council; he failed to take actions and implement policies required by rules or orders from Meade, including those made at the direction of the Council; he routinely missed meetings, including meetings of the Township Council he had been ordered to attend; he “played favorites;” he often failed to show up for work.
The Process for Disciplining Non-Civil Service Police Officers, Including Chiefs
It appears that the Council was in agreement with Meade that the Chief should be terminated. However, while Meade’s had significant personnel authority, that authority was constrained by the statute governing police discipline.
Under the “Council-Manager” form of municipal government which the Township had elected, the Township Manager is essentially the chief executive of the town. The Court explained that a township manager has the power to:
“[a]ppoint and remove… all department heads and all other officers, subordinates, and assistants, except a municipal tax assessor,”  and to “[i]nvestigate at any time the affairs of any officer or department of the municipality,” . The Council, in turn, is required to “deal with the administrative service solely through the manager and shall not give orders to any subordinates of the manager, either publicly or privately.” N.J.S.A. 40:69A-91.
In addition to the Manager’s statutory powers, the Livingston Township Code specifies that the Township Manager has “the power and authority to reprimand, suspend, dismiss, deduct pay [from] or reduce in rank… any member of the Police Division for any violation of any of the rules and regulations,” including those pertaining to “[w]illful disobedience of orders,” “[a]bsence without leave” or “[r]efus[al] to perform any duty [or] evasion of any duty.” See Livingston Township Code § 35-10(A)(2), (8), (24).
However, as the Court explained, a separate statute protecting police officers limits that power. Under that statute, the Court explained that:
a permanent member or officer of the police department, such as the police chief, can be removed only for cause, must receive written notice explaining the charges against him within a set amount of time, and is entitled to a hearing before the disciplining body to contest the charges against him.
Therefore, while Meade had the power to initiate termination or other disciplinary actions against the Police Chief, she could not execute it until the Chief was given the opportunity to show that the charges against him were not valid, and thus there was no cause to remove him. Thus, obtaining evidence supporting the reasons for terminating the Chief was extremely important.
The Council Refuses to Support Meade, Then Terminates Her
For this reason, Meade went to the Council – at the suggestion of the Township’s labor and employment attorney – requesting authorization to appoint outside counsel to conduct an independent investigation of the Chief’s actions “to try to strengthen a termination case” against the Chief. Indeed, one Councilman sent Meade an email which stated “ Bring Chief Handschuch up on charges, bring in an investigator or do nothing…. [H]e is YOUR employee….” She also asked the Council for its support. Nonetheless, and despite being unhappy with the Chief’s actions, the Council refused to authorize the independent investigation. One Councilman testified that the was because the investigation “would cause things to drag on a lot longer.”
Thus, the Council wanted Meade to terminate the Chief, but refused to give her the tools she needed to do so.
Shortly thereafter, the Council voted 4-1 to terminate Meade’s employment. In Court proceedings the Township gave a list of reasons for Meade’s termination. At the top of the list was the problems with the Chief.
Meade filed suit in the Law Division of the Superior Court claiming that she was terminated because of her gender – specifically, she argued that the Council terminated her to appease the Chief’s refusal to work with a woman. There was ample evidence that this was so. In addition to the fact that her replacements were all male, and all of her predecessors were all male, there were specific comments alleged that pointed that the problem was the Chief’s misogyny. For example, one Councilman said at a meeting “Michele [Meade] would not be having this problem if her name was Michael.” Meade alleged that another Councilman, then serving as mayor, said that “[M]aybe Chief Handschuch did not like reporting to a woman and should report to him as the Mayor instead.”
The Township filed for summary judgment in the trial court, which the judge granted, explaining that because it was the Chief who was engaging in gender bias, and he was her subordinate, she could not maintain a lawsuit under the New Jersey Law Against Discrimination – rather, the judge explained, it must be the employer which engaged in the discrimination. Since Meade did not allege that the Council was biased, but rather pandering to the Chief’s bias, she could not maintain a claim of discrimination. The discrimination had to be by a supervisor, not a subordinate who did not have authority over her.
Meade appealed to the Appellate Division of the Superior Court of New Jersey, which affirmed for the same reasons. Meade then appealed to the New Jersey Supreme Court.
The Supreme Court’s Decision
First, the Supreme Court explained that:
The LAD’s [Law Against Discrimination’s] goal is nothing less than the eradication of the cancer of discrimination. The LAD prohibits discrimination and makes it unlawful:
[f]or an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, [or] disability… to refuse to hire or employ or to bar or to discharge… from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment….
The law is thus intended to protect the civil rights of individual aggrieved employees as well as the public’s strong interest in a discrimination-free workplace.
* * * *
Although the burden of production shifts throughout the process, the employee at all phases retains the burden of proof that the adverse employment action was caused by purposeful or intentional discrimination. In meeting that burden, the plaintiff need not prove that gender was the sole or exclusive consideration in the employer’s termination decision; rather, [a] plaintiff need only show by a preponderance of the evidence that it made a difference in that decision.
The Supreme Court then explained that even if the discrimination was by a subordinate employee, if that employee’s discrimination influenced the employer’s decision to terminate or otherwise take action against an employee, if violates the Law Against Discrimination. The Court explained that:
unlawful employment discrimination — whether based on gender or on the exercise of protected conduct — can be predicated on claims that a non-decisionmaker’s discriminatory views impermissibly influenced the decisionmaker to take an adverse employment action against an employee. In other words, actions taken to accommodate discriminatory views can support liability to the same extent as actions taken based on personally held discriminatory views.
The Bottom Line
Employers can’t escape liability for wrongful termination under the New Jersey Law Against Discrimination simply because the biased employee was subordinate to the terminated employee if that bias influenced the decision-makers in their termination decision. Thus, employers need to make sure that their workplaces are free from discrimination and harassment both by supervisors and subordinate employees, and that their decisions are not influenced by anyone’s bias.
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