Sandro Polledri

Genova, Burns & Vernoia
Newark, NJ
www.GBVlaw.com
SPolledri@GBVlaw.com
(973) 535-7123

Sandro Polledri, a partner at Genova, Burns & Vernoia, is a member of the firm’s Litigation practice group. He practices primarily in the areas of employment law, labor law and employment and commercial litigation. Mr. Polledri has received his Civil Trial Attorney Certification from the New Jersey Supreme Court, and has extensive experience as a trial attorney, handling jury trials, bench trials, administrative proceedings and arbitration hearings.

View all articles by Sandro Polledri

In April 2007, radio talk show host Don Imus made racially disparaging remarks about the Rutgers women’s basketball team on the “Imus in the Morning” show. The offensive comments caused an almost instant swell of controversy and provoked widespread reaction.

Despite Imus’ repeated public apologies, his employer suspended Imus for two weeks. In protest, many public figures said apologies weren’t enough and demanded Imus’ termination.

Then advertisers—representing a cross section of major U.S. corporate brands, including Staples, AT&T, General Motors and Procter & Gamble—followed suit, threatening to withdraw tens of millions of dollars in advertising from the nationally syndicated CBS Radio program and the MSNBC television cable simulcast of the Imus show.

Imus’ discriminatory comments for now have ended his successful—albeit controversial—broadcasting career.

Joke or discrimination

The Imus experience serves as a high-profile example of how discriminatory comments can have serious consequences when made in an employment setting. These incidents may disrupt civility in the work force, compromise productivity, destroy careers, damage reputations and even expose the employer to liability for violating anti-discrimination laws.

So what distinguishes a discriminatory comment from a joke? A recent decision by the New Jersey Superior Court, Appellate Division, offers guidance on how the courts evaluate claims based on discriminatory comments and how employers should respond to an employee’s allegations that they were subjected to a hostile work environment.

The case: Jason Cutler, a Jewish police officer, brought a claim under the New Jersey Law Against Discrimination (LAD) against his employer, supervisor and co-worker, alleging that they created, perpetuated and failed to remediate a hostile work environment based upon the plaintiff’s religion or ancestry.

The police officer alleged that his supervisors exposed him to anti-Semitic comments. For example, the former chief of police routinely asked “where Cutler’s big Jew nose” was. Cutler never objected or complained about these comments.

The incident that triggered Cutler’s lawsuit was an overheard comment by a co-worker, who said “those dirty Jews” and “let’s get rid of all those dirty Jews.” Cutler also said others in the department had insulted his religion and heritage.

LAD hostility criteria

In an LAD-based hostile work environment claim, the employee must show that:

• The conduct complained of was unwelcomed.
• It occurred because the employee was a member of a protected class under the LAD.
• A reasonable person in the same protected class would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive work environment.

Cutler initially won his lawsuit when a jury found he had been subjected to a hostile work environment based on his religion or ancestry, and that the employer was liable for that environment. But the jury didn’t award damages. Both parties appealed.

The Superior Court of New Jersey, Appellate Division, reversed the jury’s decision and ruled that the case should have been dismissed. The particular behavior experienced by the “target” was carefully considered in the social context in which it occurred. In this case, the comments were made in the police department during shift changes, where police officers engage in considerable joking, laughing and “breaking chops,” as a tension breaker.

Cutler admitted he had participated in “ribbing” directed at other department members based on their religion. The court said the comments directed at Cutler fell into the category of teasing and did not constitute a hostile work environment based on religious discrimination.

The court also found that the comment made by the co-worker was isolated and not specifically directed at Cutler personally.

Given the totality of the circumstances, the comments were not sufficiently severe or pervasive enough to create a hostile work environment under the LAD.

The court reasoned that the “real social impact of workplace behavior depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” (Cutler v. Dorn, et al., No. A-5512-02T1, Superior Court of New Jersey, 2007)

Final note: What this case means for employers is that not every comment will be the basis for a successful lawsuit. But employers should not be too emboldened by this decision because hostile work environment cases are extremely fact-sensitive.
__________________________
Alexander L. D’Jamoos, Esq., an associate at the firm, assisted in the preparation of this article.