| New Jersey state courts are notoriously indulgent to | | | | until after she quit to take a job elsewhere. |
| plaintiffs claiming sexual or racial discrimination and will | | | | In Mandel, both plaintiffs left to take other jobs that |
| almost never dismiss a sex or race based | | | | paid similarly to the ones they left. In addition, the |
| discrimination case, no matter how meritless. The | | | | comments that were allegedly made were isolated |
| New Jersey Supreme Court has held that the state | | | | and clearly were not so severe or pervasive so as to |
| anti-discrimination statute (the "NJLAD") is not meant | | | | alter the conditions of the plaintiffs' employment. The |
| to be a "civility code" and was not enacted to | | | | Mandel Court cited to Heitzman v. Monmouth County, |
| combat words that are merely discourteous or rude. | | | | 321 N.J. Super. 133 for an example of what a |
| Instead, it is only supposed to apply to genuine acts | | | | religiously hostile work environment really is-namely |
| of discrimination-where an employee is singled out for | | | | one in which the harassing conduct is truly substanial |
| bad treatment due to his or her race, gender or | | | | (Heitzman's boss made repeated inquiries into what |
| religion. Moreover, in cases where the employee | | | | Heitzman was doing on Friday nights, his dietary |
| plaintiff has not been terminated, and instead claims | | | | restrictions, made comments about a country club |
| to have been subjected to a "hostile work | | | | that excluded Jews, commented on a "Jewish mile", |
| environment," the plaintiff is required to prove a | | | | and called Hietzman's vacation destination the "Jewish |
| pattern of improperly-motivated acts (such as sexual | | | | Alps," among other comments). |
| comments, racial slurs or jokes) that are so "severe | | | | The Mandel court got it right and correctly dismissed |
| or pervasive" in the workplace that they "alter the | | | | a suit in which there just was no real evidence that |
| conditions of employment." The logic behind this | | | | the employees were actually the victims of a |
| sentiment makes sense, however, subsequent | | | | continuing pattern of discrimination that transformed |
| Supreme Court and Appellate Division decisions seem | | | | their working environment into a hostile one-rather |
| to have ignored these principles in practice and | | | | were only demonstrated that there were one or two |
| effectively nullified them. | | | | stray comments. The Mandel court, however, did |
| For example in Taylor v. Metzger, 152 N.J. 490 (1998), | | | | note that under Taylor, an employee's allegation of a |
| the State Supreme Court held that a single patently | | | | single racial comment would normally preclude |
| racist slur spoken by a supervisor to a subordinate | | | | granting summary judgment. The rationale is that a |
| was enough to warrant a trial for a hostile work | | | | single racial comment can evoke centuries of cruelty |
| environment case. In the wake of Taylor, trial courts | | | | and discrimination, such as when the "N" word is |
| in New Jersey have been increasingly reluctant to | | | | directed toward an Africn-American. As for gender or |
| throw hostile work environment cases out of court | | | | sex related comments, it is unclear as to whether or |
| where an employee/plaintiff only alleges that they | | | | not a plaintiff's allegation of a single offensive remark |
| were subjected to just a few (or even one) racial or | | | | will be sufficient to preclude an employer from |
| sexual comment. Without the ability to nip cases | | | | obtaining summary judgment and avoiding trial. |
| based upon arguable trivialities in the bud on a | | | | Thus, following Mandel, Heitzman and Taylor, the |
| summary judgment motion, employers are | | | | following sliding scale can be applied to predict the |
| increasingly faced with the prospect of having to | | | | likely behavior the New Jersey State Courts when |
| defend cases of little or no ultimate value all the way | | | | faced with different types of hostile work |
| to trial in order to prevail. The high costs of trial can | | | | environment cases: |
| turn these "nuisance" cases into expensive | | | | 1. Nearly every case in which a plaintiff alleges that a |
| undertakings. | | | | patently offensive racial slur was directed towards |
| One area, however, where the State Courts are still | | | | him will overcome summary judgment and go to trial |
| willing to grant summary judgment, in the absence of | | | | (even if it is only a single comment). |
| real evidence of discrimination, is religion. In Mandel v. | | | | 2. Where a plaintiff alleges to be the victim of a |
| UBS/PainWebber, Inc., 373 N.J. Super. 55 (2004), the | | | | religiously hostile work environment, he will need |
| Appellate Division affirmed the grant of summary | | | | actual evidence of a true "pattern." Allegations of |
| judgment against two plaintiffs who alleged a | | | | isolated or sporadic comments will be unlikely to |
| religiously hostile work environment. One plaintiff | | | | warrant a trial. |
| alleged that a supervisor made the following remark | | | | 3. Where a plaintiff alleges to been subjected to a |
| about a fantasy football league being conducted in | | | | sexually hostile work environment, the behavior of |
| the office: "This is the gentiles versus the Jews and | | | | New Jersey's courts cannot be predicted. More |
| the plaque should never hang in anybody's office that | | | | conservative judges will likely dismiss cases that |
| doesn't celebrate Christmas." The other plaintiff said | | | | seem to be based on infrequent or trivial bases. More |
| that she was referred to as a "Jew b**ch" on one | | | | permissive judges should still be able to let virtually |
| occasion, although the plaintiff was not present when | | | | any plaintiff get to trial. |
| the phrase was uttered and did not learn about it | | | | © 2005, Jonathan Meyers, Esq. |