Hostile Work Environment

A SUPERVISOR’S ISOLATED USE OF RACIAL SLURS IS ENOUGH TO SUPPORT A HOSTILE WORK ENVIRONMENT CLAIM UNDER NEW JERSEY’S LAW AGAINST DISCRIMINATION.

Published on: June 28, 2021 | by Mashel Law, L.L.C.

A supervisor’s use of isolated but offensive racial slurs directed at and in the presence of an employee can give rise to a claim for a hostile work environment under New Jersey’s Law Against Discrimination (LAD) on their own. Rios v. Meda Pharm., Inc., 2021 N.J. LEXIS 553 (June 16, 2021). This is because the use of a racial epithet exacerbates its severity when uttered by a supervisor.

Plaintiff Armando Rios, Jr., a Hispanic employee, worked at Meda Pharmaceutical, Inc and alleged that his supervisor subjected him to a hostile work environment on account of two racial slurs directed at him while at work. According to Rios, during a conversation with his supervisor about Rios’ intentions to purchase a new home, his supervisor allegedly said, “it must be hard for a Sp– to have to get FHA loans.” About a month later, Rios’ supervisor allegedly made another racial comment while casting a role for a commercial that an actress “would work if she didn’t look too Sp–ky.” Rios claims he met with Human Resources after each incident and reported his supervisor’s comments, however, the Human Resources Director was dismissive and did not take action to remedy the situation. Rios filed a complaint asserting claims under, inter alia, the LAD, alleging a hostile work environment was created by his supervisor’s use of racial slurs. The trial court granted defendants’ motion for summary judgment, finding no rational factfinder could conclude Rios’ supervisor’s comments were sufficiently severe or pervasive to create a hostile work environment. The Superior Court Appellate Division affirmed those findings, and the issue was appealed to the State Supreme Court.

The overarching goal of the LAD is “nothing less than the eradication of the cancer of discrimination.” Fuchilla v. Layman, 109 N.J. 319, 334 (1988). To state a claim for a hostile work environment under the LAD and defeat summary judgment, a plaintiff must allege that the complained-of conduct (1) would not have occurred but for the employee’s protected class; and (2) it was severe or pervasive enough to make a (3) reasonable Hispanic person believe that (4) the conditions of employment are altered, and the working environment is hostile or abusive. Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 603-04 (1993) (hostile work environment claim based on supervisor’s acts of alleged sexual harassment). The Lehmann standard applies generally to hostile work environment claims, including claims based on racial comments. Id.; See Taylor v. Metzger, 152 N.J. 490, 498-500 (1998). Hostile work environment claims must be evaluated in light of all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interferes with an employee’s work performance. Cutler v. Dorn, 196 N.J. 419, 432 (2008).

NJ APPELLATE COURT HOLDS PATTERN OF DISCRIMINATORY APPEARANCE-BASED PRACTICES MAY BE SUFFICIENT FOR SEXUAL HARASSMENT HOSTILE WORK ENVIRONMENT CLAIM IN ONGOING “BORGATA BABES” LAWSUIT

Published on: May 24, 2019 | by Mashel Law, L.L.C.

The Appellate Division of the Superior Court of New Jersey published an opinion on May 20, 2019, in which it reversed an Atlantic County decision dismissing a Law Against Discrimination (LAD) claim brought by a group of employees against the Borgata Casino, Hotel, and Spa in Atlantic City.

The employees, who were all hired to work as servers for the “Borgata Babes” program, allege that Borgata engaged in disparate treatment and sexual harassment, among other LAD violations, through its implementation of personal appearance standards which focus primarily on employees’ weights. Enforcement of these personal appearance standards was done through occasional weigh-ins, which ensured employees did not go above a set weight range during their employment. The standards were imposed on women who were pregnant as well as on women who were undergoing medical treatments that caused weight gain.

This week’s decision comes after a decade of litigation in which the claims were initially dismissed by the trial court. Schiavo v. Marina Dist. Dev. Co., LLC, 2013 N.J. Super. Unpub. LEXIS 2093. That initial dismissal was reversed in 2015 when the Appellate Division held that the trial judge erred in finding the record insufficient for a showing of a prima facie claim of sexual harassment hostile work environment discrimination. Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015).

Time’s Up For Sexual Harassers and Employers Who Enable Them

Published on: February 2, 2018 | by Mashel Law, L.L.C.

America is in the middle of a social reckoning. Brave women are standing up and telling their stories of sexual harassment, assault, or other abuses by men in positions of power through use of the hashtag, #MeToo. The #MeToo movement, focused primarily on sharing stories of abuse, evolved into a call for action and female empowerment aptly named #TimesUp. Although there has long been legal recourse found in our federal and state law for victims of sexual harassment in the workplace and/or victims of retaliation for reporting it, women today are being believed and vindicated on a larger scale than ever seen before. Here in New Jersey, our Law Against Discrimination (LAD) employees protects women and men alike from sexual harassment in the workplace. There are two kinds of sexual harassment: (1) quid pro quo, which is an agreement or an offer to receive a benefit (promotion, raise, continued employment, etc.) in exchange for the performance of sexual favors; or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances. Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). Any person who aids, abets, or otherwise assists in the harassment is in violation of the LAD. N.J.S.A. 10:5-12(e).

To prove the existence of a hostile work environment under the LAD, an employee must demonstrate that the conduct in question was unwelcome, that it occurred because of his or her sex, and that a reasonable person of the same sex would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. Id. However, a victim of harassment should be mindful that the LAD is not intended to be “a ‘general civility’ code” for conduct in the workplace.'” Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004) certif. denied, 183 N.J. 213 (2005). “‘[D]iscourtesy or rudeness should not be confused with [protected status-based] harassment.'” Ibid.

The LAD expressly protects workers from retaliation for having reported sexual harassment of themselves or coworkers. This includes retaliation in the form of a hostile work environment, demotion, failure to promote, transfer, cut in pay or benefits, unpaid suspension, wrongful discharge, or even “constructive discharge”. A constructive discharge occurs when an employer takes no official action, but creates a work environment so hostile and unbearable that a reasonable employee would have no choice but to resign.

Third Circuit Rules Foreman Who Controlled Whether An Employee Had Work Constitutes A “Supervisor” For Purposes of Imputing Liability to the Employer

Published on: September 13, 2017 | by Mashel Law, L.L.C.

Under Title VII of the Civil Rights Act of 1964 and under New Jersey’s Law Against Discrimination, it is unlawful for an employer to discriminate against an employee with respect to his/her compensation, terms, conditions, or privileges of employment because of the employee’s sex or gender. In such a circumstance, an employer is liable for a hostile work environment created by one or more of its supervisors if the employee suffering the discrimination establishes that: 1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of a respondeat superior relationship between the harasser and the victim employee. “Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 619 (1993).

To establish the existence of respondeat superior liability – namely, employer liability for a supervisor’s unlawful actions or inactions – a victimized employee needs to show that the supervisor acted as the employer’s agent. Usually, to be considered an employer’s agent the worker needed to have acted within the scope of employment. See Restatement (Second) of Agency § 219(2)(d) (Am. Law Inst. 1958). However, even if the supervisor acts outside the scope of employment, the employer can still be found liable. This is because under § 219(2)(d) of the Second Restatement, an employer may be liable when employees act outside the scope of their employment if they were “aided in accomplishing the tort by the existence of the agency relation.” Stated differently, even acting outside the scope of their employment, if the employee used their position as the agent of the employer to inflict harm against a subordinate the employer can be liable.

Recently the Third Circuit in, Moody v. Atl. City Bd. of Educ., No. 16-4373, 2017 U.S. App. LEXIS 17191, at *1 (3d Cir. Sep. 6, 2017), reversed and remanded to trial a district court’s dismissal of a complaint brought by a temporary fill-in employee against a public entity employer alleging her or foreman sexually harassed her. Specifically, a custodian foreman named Marshall worked for the Atlantic City Board of Education (“ACBOE”) and oversaw scheduling the substitute custodian hours, and demanded sexual favors from Plaintiff Moody, a temporary school custodian, in exchange for favorable work schedules. When Moody refused Marshall’s demands, Marshall stopped scheduling Moody for work. Initially, the district court dismissed liability against the ACBOE finding there was no respondeat superior relationship because Marshall was not Moody’s supervisor, and therefore, the ACBOE was not liable for what Marshall had done. However, the Third Circuit reversed, concluding Marshall was in fact Moody’s supervisor because Marshall was the one who controlled whether Moody would work or not. Since Moody was a temp/fill-in worker Marshall controlled whether Moody worked at all – not just (what an average foreman controls) deciding which hours and days she worked – this gave Marshall “supervisor” status. The court then held “[w]hen a supervisor takes a tangible employment action against a subordinate, the employer is vicariously liable because the injury could not have been inflicted absent the agency relation.” Since Marshall used his position as foreman under the ACBOE to demand sexual favors in return for providing Moody work, the ACBOE was found to be liable for Marshall’s actions.