DeNoia & Tambasco and
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Under the New
Jersey law against discrimination an employee will
have a cause of action if he is in a protected class and as a result of his
status is being discriminated against. In a case approved for publication on
April 18, 2012 by our Appellate Division plaintiff claimed he was exposed to a
hostile work environment because they perceived them to be Jewish. (Cowher
v. Carson &
Roberts, A-4014-10T1, approved for publication April 18, 2012). There the
Plaintiff claimed that defendants, wrongly perceiving him to be Jewish and
directed anti-Semitic comments at him on a daily basis
from January or February 2007 to May 2008.
Plaintiff brought an action when plaintiff left his employment for unrelated
reasons, claiming Plaintiff’s actions created a hostile
work environment in violation of N.J.S.A. 10:5-12a.
The trial court held that the admitted anti-Semitic
slurs uttered were not actionable because New Jersey did not recognize a cause of
action premised upon perceived membership in a protected group other than
disabled persons.
In this case the defendants denied that they made
anti-Semitic slurs. However through discovery a DVD was discovered that had a
video of rather flagrant use of anti-Semitic slurs against the plaintiff.
The court analyzed the issue and explained as follows:
A Jewish
plaintiff alleging an anti-Semitic hostile work environment in violation of the
LAD "must demonstrate that the defendant's 'conduct (1) would not have
occurred but for the employee's [Judaism]; and [the conduct] was (2) severe or pervasive
enough to make a (3) reasonable [Jew] believe that (4) the conditions of
employment are altered and the working environment is hostile or
abusive.'" Taylor
v. Metzger, 152 N.J. 490, 498 (1998) (quoting Lehmann v. Toys 'R' Us, 132 N.J. 587,
603-04 (1993)). In determining whether the conduct is "severe or
pervasive," the Court has held that "it is the harassing
conduct" that must be severe or pervasive, not its effect on the plaintiff
or on the work environment. Lehmann, supra, 132 N.J. at 606 (citing Ellison v.
Brady, 924 F.2d 872, 878 (9th Cir. 1991)).
Our courts have permitted claims of violation of
the New Jersey
law against discrimination for persons who were discriminated against because
they had a perceived disability although they did not in fact have that
disability. This case appears to expand the claim for perceived discrimination
to all classifications of persons in all protected classes. In this case the
court found that there can be a cause of action because a person is perceived
to be Jewish and he is being discriminated against and suffering anti-Semitic
comments and being subjected to a hostile work environment.
If you believe you have been discriminated against
in the workplace and either suffered exposure to a hostile work environment or
had negative job actions or lost your job as a result of it please call our
office for a consult.
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