THE CONTINUING VIOLATIONS DOCTRINE MAY SAVE HOSTILE WORK ENVIRONMENT CLAIMS OTHERWISE BARRED UNDER NEW JERSEY LAD’S TWO-YEAR STATUTE OF LIMITATION

Although the statute of limitations for filing a claim under New Jersey’s Law Against Discrimination (LAD) lapses after two years from the last act of discrimination, a plaintiff may still have a viable LAD claim under the continuing violation doctrine according to a recent Appellate Division decision in Mansour v. Brooklake Club Corp., 2019 N.J. Super. Unpub. LEXIS 1579 (N.J. App. Div. decided July 10, 2019).

Plaintiff Adel Mansour was employed as a cook for Defendant Brooklake Club (Brooklake) between 2003 and 2016. Id. at *2. He alleged that during the time he worked for Brooklake his supervisor harassed him because Mansour was Egyptian and Muslim. Mansour’s supervisor frequently made unwelcome comments to or around Mansour about former Egyptian President Hosni Mubarak and the Muslim Brotherhood and implied Mansour had ties to terrorist organizations and activities. Id. at *2-3. In March 2014, when Malaysia Airlines flight 370 disappeared, Mansour’s supervisor “joked” about the pilot being Egyptian and then hung a large world map in the kitchen on which he wrote “Adel, where is it?” in reference to the lost plane. Id. at *4. Mansour’s supervisor also continuously criticized Mansour for not eating pork and frequently referenced that Muslims do not eat pork for religious reasons, telling Mansour, “…you Muslims don’t know what you’re missing.” Id. at *5-6. Mansour felt singled out by this conduct and told his supervisor to stop on numerous occasions, but the comments continued. Id. at *4-5.

The trial court found Mansour’s hostile work environment claim untimely because most of the alleged discriminatory acts took place outside of the LAD’s two-year statute of limitations. Id. at *5. However, the Appellate Division agreed with Mansour that the trial court “misapplied the continuing violation doctrine and failed to recognize the cumulative pattern of ongoing harassment he suffered directly related to his religion and nationality.” Id. at *7.

The continuing violations doctrine provides that “when the complained-of conduct constitutes ‘a series of separate acts that collectively constitute one unlawful employment practice[,]’ the entire claim may be timely if filed within two years of ‘the date on which the last component act occurred.’” Id. at *9 (quoting Alexander v. Seton Hall Univ., 204 N.J. 219, 229 (2010)). The continuing violations doctrine is an equitable exception to the statute of limitations in LAD cases. Id. (citing Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div. 2000)). When considering the application of this doctrine in a LAD based hostile work environment case, courts are to consider two questions: First, have plaintiffs alleged one or more discrete acts of discriminatory conduct by defendants? If yes, then their cause of action would have accrued on the day on which those individual acts occurred. Second, have plaintiffs alleged a pattern or series of acts, and one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment? If yes, then their cause of action would have accrued on the date on which the last act occurred, notwithstanding “that some of the component acts of the hostile work environment [have fallen] outside the statutory time period.”
Id. at *11 (referencing Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 22 (2002) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).

In assessing the applicability of the continuing violations doctrine to the facts before it, the appellate court in Mansour noted the doctrine does not permit aggregating discrete discriminatory acts for the purpose of reviving untimely acts of discrimination that the victim knew or should have known were actionable. Id. at *11 (referencing Roa v. Roa, 200 N.J. 555, 569 (2010)). However, given the nature and frequency of the alleged statements made by Mansour’s supervisor, the appellate court was satisfied that a rational factfinder could reasonably determine the complained-of conduct was sufficiently severe or pervasive, and that a reasonable person of Egyptian ethnicity and who is a Muslim would believe the conditions of employment had been altered and the working environment was hostile or abusive. Id. at *15.

Creating a hostile work environment for an employee because of their national origin, religion or other protected class status is a violation of the LAD. At Mashel Law LLC, we are well experienced in handling LAD claims. If you believe you have been the victim of a hostile work environment, don’t hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.