The New Jersey Supreme Court has ruled for the first time on the proof employees must offer to make a religion-based hostile work environment claim stick. The case, Cutler v. Dorn, established that New Jersey courts must decide workplace religious discrimination claims using the same legal standards they use in racial and gender discrimination claims.
Anti-Semitism in Haddonfield
Jason Cutler was a police officer employed by the borough of Haddonfield. Cutler, who is Jewish, said his supervisors and co-workers made demeaning comments about Jews.
He alleged that the chief of police referred to Cutler as “the Jew,” and asked Cutler “where [his] big Jew … nose” was. He also alleged that a lieutenant made comments like, “Why didn’t you go into your family business?” and “Jews make all the money.”
Cutler said he remained silent because he feared speaking up would limit his advancement opportunities.
But the harassment didn’t stop: Someone placed a German flag above an Israeli flag on his locker, in what Cutler viewed as a reference to the Holocaust. A co-worker blurted out, “Those dirty Jews,” in Cutler’s presence while watching a training video for the Maccabi Games, an annual athletic competition of Jewish teenage athletes.
Finally, Cutler filed a “bias incident complaint” about the co-worker’s comment. The police department disciplined the co-worker.
Three months later, Cutler sued, alleging a hostile work environment.
Same standard as sexual harassment
Cutler’s case eventually found its way to the New Jersey Supreme Court, which ultimately ruled that the test set out in a previous sexual harassment case applies generally to hostile work environment claims.
The test used in religion or ancestry-based hostile work environment claims is whether a reasonable person of the plaintiff’s religion or ancestry would consider acts and comments so pervasive or severe that they altered the conditions of employment and created a hostile work environment.
In applying the test, the focus is on the harassing conduct, not its effect on the plaintiff or the work environment. Neither the offending person’s subjective intent nor the victim’s subjective response determines whether a hostile work environment claim exists.
The court recognized that religion-based harassing conduct in the workplace is as offensive as other forms of discrimination. The court compared the conduct that took place in Cutler’s case to sexual and racial harassment.
It ruled that a person asserting religious or ancestry-based harassment does not bear a heavier burden in a work environment claim than other forms of harassment.
In analyzing Cutler’s hostile work environment claim, the court determined that Cutler’s superiors and co-workers made their comments because Cutler is Jewish and the comments were hostile. The repeated comments clearly constituted harassment for Cutler, whose ancestry and religion kept being demeaned and insulted. The court found the comments altered the workplace for the worse.
Humor is not a defense
Haddonfield claimed the conduct was part of a police department “humor file”—the product of an atmosphere featuring good-natured joking that most Haddonfield police officers, including Cutler, regularly engaged in.
The humor files were two file folders that contained collections of characterizations, dirty jokes, sexual images and cut-and-pasted pictures. One was a picture of a person at a barbecue wearing a Nazi uniform and giving a Nazi salute to what appear to be two Haddonfield police officers. Haddonfield argued that the humor file showed the level of “ribbing” and “breaking of chops” that went on among members of the department.
The Supreme Court rejected the humor file defense. The court reasoned that the comments weren’t funny, but instead demonstrated the pervasiveness of an anti-Jewish sentiment that could comfortably be expressed in the Haddonfield Police Department.
The New Jersey Supreme Court has cleared up any misconceptions that there is a higher standard for religion- or ancestry-based discrimination and harassment than for other forms of bias and bigotry.
Eric Ruden, a law clerk at Genova, Burns & Vernoia, assisted in the preparation of this article.
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