If you are a New Jersey employee and you overhear or learn secondhand that someone is using offensive language to disparage you or others based on protected class characteristics such as race, age, sex, disability, sexual orientation, etc., you may qualify as a victim of a discriminatory based hostile work environment under New Jersey’s Law Against Discrimination (the “LAD”).  This may be true even if the prejudiced language is not directed at a protected class you are a member of.

Generally, when a Plaintiff-Employee alleges a hostile work environment under the LAD based on a legally protected class characteristic (i.e., age, race, sex, national origin, etc.) The Plaintiff-Employee must demonstrate that the Defendant-Employer’s conduct,

(1) would not have occurred “but-for” the Plaintiff-Employee’s protected characteristic,

(2) the conduct was severe or pervasive enough,

(3) to make a reasonable person of the same protected characteristic believe that,

(4) the conditions of employment are altered and the working environment is hostile or abusive.

(emphasis added) Taylor v. Metzgar, 152 N.J. 490, 498 (1998).

However, because the LAD as a remedial statute is to be construed with “a high degree of liberality”, Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 495 (1982), to pursue relief under the LAD, a victim need not always be the direct subject of an employers bigoted comments, nor even possess the same protected characteristic at issue. For example, if a white employee overhears a supervisor or coworker using the “n-word” to disparage black employees, and the white employee is fired, demoted, or transferred for objecting to the use of racially offensive language in the workplace, that same white employee maybe considered a victim of a hostile work environment in violation of the LAD. These protections arguably exist in addition to the LAD’s statutory provision forbidding retaliation against someone who reports a discriminatory work environment. N.J.S.A., 10:5-12(d).

Support for this conclusion can be found in the case entitled Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 526, 70 A.3d 602, 607 (2013) where the New Jersey Supreme Court held that an employee alleging a hostile work environment under the LAD is not required to prove the existence of an identifiable victim of discrimination. Rather, the Plaintiff-Employee need only demonstrate a “good-faith belief” that the complained of conduct violates the LAD. Id. In Battaglia, the Plaintiff-Employee Michael Battaglia (“Battaglia”) worked as a center manager for UPS. Id. Battaglia’s Supervisor, Wayne DeCraine (“DeCraine”), would often make highly vulgar and sexually inappropriate comments about women in Battaglia’s presence at work. Id. at 527. Although no female employees were present while DeCraine made his sexually derogatory remarks about women, Battaglia filed a formal workplace complaint against DeCraine for his lewd comments. Id. Shortly thereafter, Battaglia suffered retaliation in the form of a demotion, prompting him to file suit against UPS for violating the LAD. Id. UPS defended itself arguing DeCraine’s conduct did not violate the LAD because no person was the direct subject of the harassing comments as only male employees were present. Id. The New Jersey Supreme Court rejected UPS’s argument holding in favor of Battaglia, eloquently reasoning, “although there was no evidence any women heard the language, the LAD does not only protect those who complain about directly demonstrable discriminatory acts. It is intended to protect individually aggrieved employees as well as the public’s strong interest in a discrimination-free workplace.” Id. at 526.

In Kengerski v. Harper, 6 F.4th 531 (3d Cir. 2021), the Plaintiff-Employee, Jeffrey Kengerski (“Kengerski”) worked as a Captain at the Alleghany County Jail (“the Jail”). In early 2014, Kengerski was at work telling coworkers about his grandniece named “Jaylynn” when a white female coworker, Robyn McCall (“McCall”) interjected saying, “what kind of name is Jaylynn, is she black?” Id. Kengerski answered McCall telling her Jaylynn was in fact biracial. McCall then allegedly responded, “Kengerski will be that guy in the store with a little monkey on his hip.Id. Later, McCall proceeded to send racially offensive material to Kengerski’s phone. Id. at 539-41

Kengerski filed an internal complaint against McCall and months later he was fired in retaliation for doing so, leading him to file a race discrimination suit under Title VII of the 1964 Civil Rights Act (“Title VII”), the LAD’s Federal statutory counterpart. Id. On appeal, the Third Circuit held in Kengerski’s favor reasoning McCall’s comments and text messages would have led a reasonable person to believe that the Jail was a hostile work environment for Kengerski based on race because Title VII protects employees from racial discrimination, “including discrimination because of an employee’s association with a person of another race (such as a family member).” Id.

If you or someone you know is the victim of a discriminatory based hostile work environment, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to protecting the rights of employees.

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