Supervisor’s Alleged Use of Slur Enough to Send Discrimination Lawsuit to Trial, New Jersey Supreme Court Rules

Harassment in the workplace could violate state and federal antidiscrimination laws when it is based on a protected category, such as race, religion, national origin, or gender. In order to prevail on a New Jersey workplace harassment claim, a plaintiff must show that the behavior rose to such a level that it created a hostile work environment. Exactly when offensive behavior reaches this level depends on the circumstances of each case. In June 2021, the New Jersey Supreme Court ruled that a supervisor’s alleged use of a particular slur in the plaintiff’s presence on two occasions was enough to allow the case to go to trial.

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees on the basis of multiple factors, including race and national origin. A hostile work environment exists when harassment based on a protected category is so severe or pervasive that a reasonable person in the same position as the plaintiff would find the situation hostile or abusive. This usually involves conduct that interferes with a person’s ability to do their job.

The law’s use of the term “severe or pervasive” indicates that offensive conduct does not have to be widespread. A single incident can support a hostile work environment claim if it is bad enough. In the case that was before the New Jersey Supreme Court earlier this year, the plaintiff alleged two specific incidents involving a supervisor.

The plaintiff is a Hispanic man who began working for the defendant employer in early 2015. About a month after he was hired, he alleges that his supervisor directed a slur at him that is typically targeted at people with Hispanic heritage. The supervisor allegedly used the slur again a short time later in reference to another person. The plaintiff states that he reported the matter to the company’s human resources officer, but claims that the person was “dismissive” of his concerns.

After the plaintiff filed suit for discrimination under the NJLAD, the defendant moved for summary judgment. In March 2019, the trial court granted the motion, finding that no “rational factfinder” would conclude that the supervisor’s statements were sufficiently severe or pervasive to constitute unlawful harassment. The Appellate Division affirmed the ruling on different grounds. It acknowledged that the supervisor’s use of the slur could meet the “severity” element, but focused on a lack of corroborating witnesses or evidence of any “adverse employment consequences” suffered by the plaintiff.

The New Jersey Supreme Court, in a unanimous ruling, reversed the lower courts. It analyzed the plaintiff’s claims using a four-part test developed in a 1993 ruling: The conduct (1) “would not have occurred but for” the protected category; and it was (2) so “severe or pervasive” that (3) a reasonable person with the same protected characteristic would believe that (4) the conduct “altered…the conditions of employment” and create a “hostile or abusive” work environment.

That case involved sexual harassment, so the court used the standard of a “reasonable woman.” In this case, it considered how a “reasonable Hispanic person in the plaintiff’s position” would view the supervisor’s alleged comments. It found that enough evidence existed to allow the case to go to trial.

The employment attorneys at the Resnick Law Group represent New Jersey and New York workers in claims for violations of federal and state employment laws. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or at 646-867-7997.

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