Ambiguous Insult Insufficient to Establish a Claim Under the New Jersey LAD

New Jersey - Employment Law

Key Points:

• If sufficiently severe, a single comment can be enough to prove a hostile work environment under the New Jersey LAD, but only in "a rare and extreme case."
• An ambiguous insult alone against a plaintiff of a protected class is insufficient for a claim under the New Jersey LAD.

The New Jersey Law Against Discrimination ("LAD") makes it unlawful to subject people to differential treatment based on several criteria, including: race, creed, color, national origin, nationality, ancestry, age, sex and a number of other areas. The LAD prohibits unlawful discrimination in employment, housing, places of public accommodation, credit and business contracts. With regard to employment specifically, the LAD prohibits employers from discriminating in any job-related action, including, but not limited to, recruitment, interviewing, hiring, promotions, compensation and the terms, conditions and privileges of employment on the basis of any of the law's protected categories.

In order to establish a prima facie hostile work environment claim under the LAD in an employment setting, a plaintiff must establish several criteria. The plaintiff must show that: (1) the conduct would not have occurred "but for" his identity within a class protected by the LAD and (2) the conduct was severe or pervasive such that (3) a reasonable person in the same protected class would believe that (4) "the conditions of employment are altered and the working environment is hostile or abusive." Cutler v. Dorn, 196 N.J. 419, 430 (2008) (quoting Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993)).

The unpublished and recently decided appellate case of Bastos v. The State of New Jersey, et al. (Docket A-5077-08T2), involved a claim of a hostile work environment under the LAD. The plaintiff, Christopher Bastos, was a former New Jersey state trooper. Mr. Bastos, a Hispanic man, graduated from the New Jersey State Police Academy in 2002 and was assigned to the Red Lion barracks. As a new recruit at Red Lion, the plaintiff was subjected to obscenities, yelling and general hostile behavior by his superiors. The plaintiff was told by one of his supervisors that "Hispanic and Mexican motorists were easy to identify while troopers were on road duty." The plaintiff was also told by another supervisor that another higher ranking officer "did not take kindly to minorities." A fellow recruit at Red Lion also told the plaintiff that he was a "token."

On one occasion, a supervisor, defendant DiPaola, called the plaintiff "bastard" and on another occasion "Bastido." It was the plaintiff's belief that the mispronunciation of his name was purposeful and was not only an insult, but an ethnic slur to his Hispanic heritage. At trial, other co-workers testified that they had heard supervisors refer to the plaintiff as "Bastido" and that they also considered this phrase to be an ethnic slur against the plaintiff. In spite of the several times that the plaintiff's supervisors called the plaintiff "Bastido" behind his back, the plaintiff could only testify as to one occasion in which he was called the name to his face.

In December of 2002, the plaintiff complained to the Equal Employment Opportunity Commission (EEOC) about the treatment he had received at Red Lion. Shortly thereafter, he was transferred from the Red Lion barracks to the Netcong barracks, which the plaintiff believed was an undesirable assignment. While at Netcong, the plaintiff's former supervisors from Red Lion called the Netcong barracks and told a sergeant there that troopers would be waiting for the plaintiff in the parking lot. The plaintiff's former supervisor also made several harassing calls to the Netcong barracks, and other co-workers at Netcong told the plaintiff that there was "bad news" in the rumor mill about him. On January 21, 2003, six months after his graduation from the New Jersey State Police Academy, the plaintiff resigned from his position.

In reviewing the above matter, the Appellate Division took into consideration the harassment perpetrated against the plaintiff and found that, while the behavior of the plaintiff's supervisors was offensive, hostile and intimidating, it was not targeted at the plaintiff's ethnicity. In evaluating a hostile work environment, the court held that it must consider the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Cutler, supra, 196 N.J. at 432 (quoting Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 19-20 (2002)). If sufficiently severe, a single comment can be enough to prove a hostile work environment, but only in "a rare and extreme case." Taylor v. Metzger, 152 N.J. 490, 500 (1998) (quoting Lehmann, supra, 132 N.J. at 606-07); see Flizack v. Good News Home For Women, Inc., 346 N.J. Super. 150 (App. Div. 2001).

In evaluating the plaintiff's case, the court found that the only comment which could possibly be found to have targeted the plaintiff's ethnicity was the name "Bastido." In spite of this finding, the court found that the remark was only said to the plaintiff directly on one occasion and that it was not the type of comment that would in and of itself prove a hostile work environment pursuant to the holding of Taylor. While the court did not dispute that the remark made toward the plaintiff was clearly "adolescent mockery," the court did not find that the comment alone was enough to establish a claim of a hostile work environment under the LAD and, therefore, dismissed the plaintiff's complaint.

The Bastos case illustrates that an ambiguous insult against a plaintiff of a protected class is not enough to establish a claim under the LAD.

*Ida is an associate in our Roseland, New Jersey, office who can be reached at 973.618.4109 or imfuda@mdwcg.com.

Defense Digest, Vol. 17, No. 3, September 2011