Cowher v. Carson & Roberts, 425 N.J. Super. 285 (App. Div. 2012). Plaintiff Myron Cowher worked for a trucking company. His two supervisors persistently hurled anti-Semitic epithets at him, including (among many others) “Jew Bag,” “Jew Bastard,”If you were a German, we would burn you in the oven,” and “Only a Jew would argue over his hours.” The supervisors admitted doing that and much more. Plaintiff complained to the two supervisors, and to a third supervisor, who heard a few of the remarks and told the other two that their actions were wrong but did not stop them. Still, the conduct did not cease. As a result, plaintiff claimed that defendants, who included the company and the three supervisors, had created a hostile work environment, in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”).
There was only one wrinkle: plaintiff was not in fact Jewish. For that reason, the Law Division entered summary judgment in favor of all defendants. The judge concluded that if plaintiff were not actually Jewish, the admitted anti-Semitic remarks could not have created a hostile work environment as to him.
The Appellate Division reversed the summary judgment as to the company and the two supervisors who had made the remarks. Judge Payne cited prior cases in which courts had held that persons with a “perceived” disability or other status protected by the LAD could bring claims under that statute. “Thus, if plaintiff can demonstrate that the discrimination that he claims to have experienced would not have occurred but for the perception that he was Jewish, his claim is covered by the LAD.”
Judge Payne found that plaintiff had offered enough evidence “that the conduct of the defendant employees was severe or pervasive enough to make a reasonable person believe that the conditions of plaintiff’s employment were altered and that the working environment had been made hostile or abusive.” A key aspect of that analysis, however, was whether the “reasonable person” standard in this case was a “reasonable Jew,” especially since plaintiff was not Jewish. Judge Payne determined that the standpoint of a “reasonable Jew” was the appropriate perspective, just as, in cases involving women plaintiffs, the Supreme Court has held that a “reasonable woman” standard is called for.
The fact that plaintiff was not in fact Jewish did not change matters. Judge Payne stated that the supervisors had engaged in “‘real discrimination and harassment’ of the type that the LAD seeks to eliminate” (emphasis by Judge Payne). “That their target turned out not to be Jewish should not serve to excuse their conduct.” As to the two offending supervisors, therefore, the Appellate Division reversed the summary judgment and remanded the case for trial. Though supervisors are not an “employer” who can be liable under the LAD, they can be guilty of aiding and abetting, so a trial was required as to them.
The summary judgment as to the third supervisor, who had not made any remarks but had merely failed to stop his fellow supervisors from doing what they did, was affirmed. Only “active and purposeful conduct” suffices for LAD aiding and abetting liability, and the third supervisor’s actions or inactions did not rise to that level.
Finally, the company argued that because it had a policy against discrimination, and a procedure for reporting wrongful discriminatory acts, it could not be liable. The panel disagreed. The existence of a policy, without more, does not provide a safe haven or exculpate an employer from liability. Rather, the efficacy of the policy must be evaluated. Here, plaintiff complained about the wrongdoing, but the company did not stop the supervisors’ behavior. The summary judgment for the employer was therefore reversed.
Judge Payne’ s decision takes a properly broad and liberal view of the LAD, whose purpose, as she noted, is remedial. An employer who engages in or abets discriminatory conduct made illegal by the LAD should not be able to escape liability merely because of the purely fortuitious circumstance that their victim was not in fact in the protected class.