NJLAD Religion Claims Held To Same Standard Of Proof As Sex And Race Claims
The New Jersey Supreme Court, for the first time, recently addressed the standard of proof required to establish a claim of hostile work environment religious discrimination under the Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. (the “LAD”). In Cutler v. Dorn, 2008 N.J. LEXIS 895 (July 31, 2008), the Court held that “the threshold for demonstrating a religion-based, discriminatory hostile work environment cannot be any higher or more stringent than the threshold that applies to sexually or racially hostile workplace environment claims.”
The Facts
Defendant Haddonfield Police Department hired plaintiff Jason Cutler as a police officer in January 1995. Cutler was Jewish and the other members of the police department were aware of his “faith and background.”
Cutler alleged that, in his presence, his supervisors routinely made “negative and demeaning comments” about Jews. For instance, according to Cutler, the police chief often commented on Cutler’s “Jewish ancestry.” The chief referred to Cutler as “‘the Jew’” and, on one occasion, asked Cutler “‘where [his] big Jew … nose was.’” A police lieutenant made similar comments in Cutler’s presence. The lieutenant said, for example, “‘Jews are good with numbers,’” “‘why didn’t you go into your family business … why are you here,’” and “‘Jews make all the money.’”
Fearing retaliation, Cutler did not complain about the comments, which he believed were poor attempts at humor though, nonetheless, offensive. Based upon the conduct of the top two officials in the police department, Cutler concluded that the culture throughout the department was “‘ripe with anti-Semitism.’”
In addition to these types of comments, “several incidents caused Cutler to feel that he was subjected to discriminatory or harassing treatment because of his religion.” On one occasion, a superior office told him not to wear a yarmulke during Passover because it violated the uniform policy – even though another officer was permitted to wear a “‘Jesus First’” pin on his uniform. On another occasion, Cutler discovered that an Israeli flag sticker had been placed on his locker. A few weeks later, a German flag sticker was placed above the Israeli flag, which Cutler believed to be a reference to the Holocaust. He believed that “‘somebody was trying to send [him] a message.’”
The incident that ultimately prompted Cutler to complain occurred in April 1999. Cutler, a fellow patrolman, and a police corporal were preparing to watch a training video in advance of the Maccabi games, an Olympic-style sporting event for Jewish teenagers scheduled to take place in Cherry Hill. The patrolman commented, “‘[t]hose dirty Jews.’”
Cutler told the corporal that the comment had offended and upset him. At the corporal’s direction, the patrolman apologized to Cutler and said the remark was a joke. The corporal subsequently asked Cutler if he wanted to file a complaint. Cutler filed a complaint regarding the remark and the hostile conduct of others within the department.
The police department’s Internal Affairs Department investigated the complaint and recommended that the patrolman receive sensitivity training and a written notice that his conduct was inappropriate and would not be tolerated in the future. Cutler considered this discipline inadequate. Less than three months later, when referring to the incident in Cutler’s presence, the patrolman recounted his remark as, “‘let’s get rid of all those dirty Jews,’” which Cutler understood to be advocacy of genocide and a reminder of the Holocaust.
The Trial Court
Cutler filed a lawsuit against the Borough of Haddonfield and others asserting a LAD claim for hostile work environment harassment based upon his religion and ancestry. Following a trial, the jury found Haddonfield liable for subjecting Cutler to a hostile work environment, but awarded no damages. Haddonfield moved to reverse the verdict and Cutler moved for, among other relief, an award of damages. The trial court denied the motions and both parties appealed.
The Appellate Division
On appeal, the Appellate Division reversed the denial of Haddonfield’s motion. Characterizing the comments made in Cutler’s presence as “teasing,” the Appellate Division concluded that the alleged conduct was “sporadic and not sufficiently severe or pervasive to create a hostile work environment.” The Supreme Court granted Cutler’s petition for certification.
The Supreme Court
The Supreme Court explained that the same analysis applies to both sexual and religious harassment claims. Specifically, a court assessing a religious faith or ancestry hostile work environment claims should consider “whether a reasonable person of plaintiff's religion or ancestry would consider the workplace acts and comments made to, or in the presence of, plaintiff to be sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment.”
According to the Court, the inquiry is based upon the perspective of a reasonable person of the plaintiff’s religion. The plaintiff’s subjective response and the defendant’s subjective intent should not be considered. Moreover, the Court indicated, the analysis focuses on the “totality of the circumstances.”
The Court then considered whether “the conduct to which Cutler was subjected by his supervisors and colleagues in the police department amounted to severe or pervasive harassment that a rational factfinder could conclude would create a hostile work environment for a person of Jewish faith and ancestry.” The Court noted that anti-Semitic remarks made in Cutler’s presence contributed to a hostile work environment, even if some were not directed at him personally.
Observing that the conduct here “occurred because of Cutler’s particular ancestry and religion,” the Court then considered whether it was “objectively hostile.” Concluding that it was, the Court explained that the offensive remarks were denigrating and “conveyed ongoing hostility toward Jewish people.”
The Court expressly rejected any suggestion in Appellate Division case law that religious hostile work environment claims are subject to a higher threshold then race and sex based claims.
According to the Supreme Court, the incidents alleged by Cutler could be viewed, “in the aggregate, to create an objectively humiliating and painful environment.” The Court concluded that “the comments and actions here went beyond conduct that was welcomed by Cutler and were actionable.” The Court reinstated the jury verdict and remanded the case to the Appellate Division to decide Cutler's appeal regarding damages and other issues.
© Copyright 2023 Sills Cummis & Gross P.C.National Law Review, Volume , Number 149
