In an important employment law decision, New Jersey’s Supreme Court once again considered the actions necessary to constitute illegal workplace harassment in the case of Rios v. Meda Pharmaceutical, Inc. In this case the alleged harassment was based on an employee’s race and ethnicity in violation of New Jersey’s Law Against Discrimination.
New Jersey’s Law Against Discrimination prohibits workplace discrimination because an employee’s protected characteristic, including the employee’s:
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, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.
In the 1990 case of Erickson v. Marsh & McLennan Co., the New Jersey Supreme Court held that sexual harassment constitutes discrimination based on an employee’s “sex” in violation of the Law Against Discrimination following the reasoning of the United States Supreme Court’s 1986 case of Meritor Savings Bank, FSB v. Vinson which interpreted Title VII of the Civil Rights Act of 1964. (If the harassment is because of personal animus, rather than a protected characteristic of the employee, the harassment is not illegal unless it rises to the level of assault, criminal harassment, or some other violation of the criminal law.)
Shortly thereafter, in the seminal 1993 case of Lehmann v. Toys ‘R’ Us, the New Jersey Supreme Court established the basic test for whether harassing conduct is actionable. The Lehmann case involved sexual harassment, but the Supreme Court confirmed in the Rios case that the Lehmann test applies to all discriminatory harassment, not just sexual harassment. The Lehmann Court explained that:
To state a claim for hostile work environment sexual harassment, a female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. For the purposes of establishing and examining a cause of action, the test can be broken down into four prongs: the complained-of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. However, the second, third, and fourth prongs, while separable to some extent, are interdependent. One cannot inquire whether the alleged conduct was “severe or pervasive” without knowing how severe or pervasive it must be. The answer to that question lies in the other prongs: the conduct must be severe or pervasive enough to make a reasonable woman believe that the conditions of employment are altered and her working environment is hostile.
Thereafter, in 1998, the New Jersey Supreme Court hear a case of racial harassment. In that case, Taylor v. Metzger, the Supreme Court was faced with the question of how much harassment is necessary to create a hostile work environment. Taylor was a Burlington County Sheriff’s Officer, and Metzger was the Burlington County Sheriff. At one point, Taylor, who is Black, encountered Metzger, who was white, and said hello. Metzger then turned to the Undersheriff and said, “There’s the jungle bunny.” When she told her co-workers, they laughed. The Supreme Court explained that the standard was that the harassment must be “severe or pervasive.” In that case, the harassment certainly was not pervasive, but that single racial epithet – one word – was enough to create a racially hostile work environment. There the law has stood.
The Rios Case
In this case, Rios, who was Hispanic, alleged that his direct supervisor twice used the anti-Hispanic racial epithet “spic” to him. The Court described the alleged incidents:
Rios asserts that, one month after he started working at Meda, he told [his direct supervisor] Cheng-Avery that he and his wife were looking for a new home. Rios and Cheng-Avery were alone together in her office. According to Rios, Cheng-Avery replied, ‘it must be hard for a Sp— to have to get FHA loans.’ Rios said he paraphrased Cheng-Avery’s words.
Several weeks later, in July 2015, Rios alleges Cheng-Avery made a second comment while the two were casting actresses for a television commercial for a Meda product. According to Rios, Cheng-Avery told him one of the actresses ‘would work’ for the commercial ‘if she didn’t look too Sp—ky.’
Cheng-Avery denies making either statement.
The company had an anti-harassment policy requiring employees to report harassment; it stated that the company would take action to stop the harassment if the employee reported it. Rios testified that he did report the harassment to the Director of Human Resources, but the company took no action. The Director died before he could be deposed, so there was no testimony from him either way.
The Defendants filed a motion for summary judgment, asking the trial judge in the Law Division of the Superior Court of New Jersey to dismiss Rios’s lawsuit. They argued that: The allegations failed to raise to the level of creating a hostile work environment; that the second statement could not be used against them because it was not aimed at Rios; that he did not suffer an adverse employment action because of his race so he could not sue for harassment; and that the allegations were untrue. The trial judge agreed and dismissed Rios’s lawsuit, which was upheld by the Appellate Division of the Superior Court. The New Jersey Supreme Court rejected all these arguments.
First, citing the Taylor case, the Court rejected the argument that these two statements were insufficient to cause a hostile work environment. Both Lehmann and Taylor established the principle that harassment violated the New Jersey Law Against Discrimination if they were either pervasive or severe. Relying on Taylor, where one word was sufficiently severe, the Supreme Court explained that these two alleged racial epithets by Rios’s supervisor could likewise be found by a jury to be sufficiently severe enough to violate the New Jersey Law Against Discrimination. Second, the New Jersey Supreme Court likewise found that the fact that one the comments was directed at another person did not limit their impact on Rios. (This has sometimes been referred to as “cat’s paw” discrimination – see the United States Supreme Court’s decision in Staub v. Proctor Hospital.)
Third, the New Jersey Supreme Court explained that it had never required an employee to be fired or demoted in order to have a claim for discriminatory harassment – rather, it is the harassment itself which changes the conditions of employment and creates a hostile work environment.
Finally, the Court explained that at the summary judgment stage all of the evidence must reviewed be in the light most favorable to the party opposing dismissal. Here, even though the supervisor denied making the statements, Rios claimed she did. This, the Court explained, was enough to create a question of fact for the jury, rather than a judge on summary judgment.
This ruling emphasizes New Jersey’s ongoing commitment to eliminating workplace discrimination. Harassment, sexual, racial or based on some other protected attribute, is illegal. It need not be ongoing; one or two acts – even one or two words – can create a hostile work environment if the employer does nothing to correct the situation.
However, it is important to note that an employer will not be liable for the acts of one bad employee if it has an anti-discrimination harassment policy, the effected employee uses it, and the employer takes effective action to stop the harassment.
We represent employers and employees in all aspects of New Jersey employment law, including discrimination and harassment. Call us at (973) 890-0004 to schedule a consultation with one of our New Jersey employment attorneys. We can help.