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July 12, 2020
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Updated On: Dec 17, 2008

   New Jersey has some of the most stringent laws in the country regarding workplace harrassment. Generally speaking, however, to be illegal, harrassment in the workplace must be based on a particular "protected characterstic" of the indivdual being harrassed. The most obvious classifications are gender, age, ethnicity, martial status or sexual preferences. It is illegal to discriminate, harrass or retaliate against someone based upon such characteristics. Recent decisions of the New Jersey Supreme Court have made clear that words alone, even if uttered in a joking manner, can constitute discrimination in certain circumstances. In Cutler v. Dorn, the New Jersey Supreme Court found that police officers in Haddonfield violated the New Jersey Law Against Discrimination ("LAD") through frequent and pervasive comments which were directed at a Jewish police officer. The Court concluded that a hostile work environment claim can be sustained under the LAD if a reasonable person of plaintiff's religion or ancestry would consider the workplace acts or comments made to, or in the presence of, plaintiff to be sufficiently severe or pervasive.

   In this case, the plaintiff police officer observed that his supervisor would makes negative and demeaning comments or "jokes" about Jews in his presence. For example, the Chief of Police would comment on his ancestry a couple of times a month, often referring to him as "the Jew" when he was present. The Chief also asked the plaintiff on one occasion "where [his] big Jew... nose was", and the Lieutenant also made derogatory comments directed at plaintiff's ancestry. Stickers were also placed on the officer's locker including a German flag which was placed above an Israeli sticker. On one occasion, fellow officers referred to "dirty Jews" when speaking to the plaintiff.

   At trial, the trial court denied the employer's motion for a dismissal and allowed the claims to be decided by a jury. The jury found in the plaintiff's favor on the hostile work environment claim but awarded him no damages. On appeal, the Appellate Division reversed the verdict and dismissed plaintiff's complaint. The Supreme Court agreed to review the case.

   In its decision, the Court found that the comments directed at the plaintiff constituted a hostile work environment based upon its prior decisions. Specifically, the Court concluded that plaintiff succeeded in establishing a hostile work environment claim because the conduct at issue would not have occurred but for his religion and ancestry, and because it was "severe and pervasive" enough to make a reasonable person believe that the working environment was hostile and abusive.

   The Cutler opinion follows similar previous decisions addressing hostile work environment claims of sexual or racial harassment, and accordingly rejects the theory that these comments were "just teasing". The Court noted that stereotypical ethnic references made in the presence of an individual could in the aggregate create an objectively humiliating and painful environment. While each comment, in and of itself, might not be considered harrassment, the Court emphasized that one must look at the comments as a whole, particularly if comments are uttered by one's supervisors.

   In Kwiatkowski v. Merrill Lynch, a recent Appellate Division case, the court made it clear that even a single insult can result in an LAD violation if it is sufficiently egregious. That case involved a claim by an employee that he was fired because of his sexual orientation.He claimed that his supervisor called him a "stupid fag", and that this demonstrated bias and the real reason for his termination. While the trial court dismissed the contention that this single comment could trigger LAD liability, the Appellate Division disagreed and reinstated the case. It held that a jury could find that the single statement "stupid fag" created a hostle work environment, even if it was made by a different supervisor than the one who actually fired plaintiff.

   In short, the courts have been very active in addressing hostile work environment claims. It is important to understand that even workplace comments made in a teasing or joking manner in certain instances can support hostile work environment claims. Those comments could be made about a person's gender, ethnic background, sexual orientation or religious beliefs. And while it is usually the cumulative impact of these incidents which may constitute a hostile work envirnment, in some instances even a single outrageous comment may be sufficient and trigger liability. We caution that these decisions certainly do not mean that all workplace jokes and teasing are unlawful. But if the remarks are numerous, made by supervisors directed towards subordinates, or outrageous and egrerious when made by a co-worker, the courts are more likely to find LAD vioaltions.

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