Wednesday, May 2, 2012

Cause of Acton for being perceived to be a member of a protected class under New Jersey's Law Against Discrimination

DeNoia & Tambasco and


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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