Michael Booth New Jersey Law Journal August 5, 2008
Workers taunted about their religion or ancestry are entitled to the same legal protection as the victims of sex, race and ethnic harassment, the New Jersey Supreme Court said in the case of a police officer whose colleagues called him a "dirty Jew."
The unanimous court on July 31 reinstated a verdict against the Haddonfield Police Department and a number of its officers and patrolmen for directing anti-Semitic taunts, harassment and slurs at Patrolman Jason Cutler.
A Camden County jury awarded no damages because it found no basis for Cutler's claim that anti-Semitism delayed his promotion to corporal. And, in a ruling that prompted amicus briefs from Jewish groups and the plaintiff's employment bar, an appeals court said the behavior amounted to locker-room antics, "ribbing" and "breaking of chops" and wasn't actionable.
The state Supreme Court agreed there were no monetary damages, but it reinstated the harassment finding, adding to its stack of pro-plaintiff rulings in workplace discrimination cases.
"Consistent with this state's strong policy against any form of discrimination in the workplace, we hold 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 work environment claims," Justice Jaynee LaVecchia wrote in Cutler v. Dorn, A-51-07.
The court found that Cutler, a borough officer since 1995, was either directly targeted by anti-Semitic remarks from his fellow officers and, on occasion, his superiors, or that remarks were made about Jews in general while he was present.
Remarks over a five-year period included, "Let's get rid of the dirty Jews," "Jews make all the money" and "Jews are good with money."
Haddonfield solo Mario Iavicoli argued for the borough that Cutler was an active participant in the rough-house atmosphere of the police station and had gone along with the behavior for years. He noted that the department maintained a "humor file" containing ethnic jokes and that Cutler had contributed to it. Thus, he argued, there was no hostile work environment.
"We reject Haddonfield's facile explanation," LaVecchia wrote. "Even in a work setting in which derogatory humor was a norm, the 'humor file' defense fails to be dispositive of Cutler's claim of hostile work environment."
LaVecchia said the court's seminal ruling in Lehmann v. Toys "R" Us, 132 N.J. 587 (1993), was meant to apply to all forms of discrimination, not just the sexual discrimination alleged in that suit. And the Law Against Discrimination 10:5-1 to -49, should be broadly read to include claims of harassment and discrimination based on religious beliefs or ethnicity. "Antagonistic, degrading, or demeaning conduct in the workplace that is directed at or about one's religious faith, or ancestry, can be discriminatory and can amount to an unlawful hostile environment," she wrote.
In determining whether harassment based on religion, ancestry or sex creates a hostile work environment, finders of fact should apply the "reasonable person" standard, and here, the jury made the correct decision, she said. The record shows that anti-Semitic comments were either directed at Cutler personally or were made about Jews in general when he was around. The conduct, she said, was purposeful and ongoing.
"Those statements were not accidental in parlance. They were aimed to have an effect on their listener, and their listener was known to the speakers as a person of Jewish faith and ancestry. The uttering of those repeated comments clearly constituted a form of harassment for the person whose ancestry and religion was being demeaned and insulted," LaVecchia said.
"The Appellate Division calls it 'teasing' ... but that moniker undervalues the invidiousness of these stereotypic references and demeaning comments that were directed at Cutler, or said in his presence," she added.
When fellow officers and superiors say things like, "Let's get rid of all those dirty Jews," the effect was to take Cutler back to "one of the lowest times in mankind's history, the Holocaust," she said.
The court warned that it would likely reject arguments in future cases that attempt to wave away inappropriate behavior as just part of the general culture of a particular workplace.
"Time and time again, such inappropriate workplace 'cultures' have given rise to liability for a hostile workplace," she said. "In sum, the comments demonstrated an anti-Semitic bigotry that has no place in a workplace of this state."
Borough attorney Iavicoli says religious or ethnic humor should not be part of any workplace but he says the ruling, with its sweeping language, could have unintended consequences. "You can't make a joke in the workplace, even if it's not mean-spirited," he says. "The court is really raising the bar for workplace standards. Even if a joke is made in jest, that's a hostile work environment."
New Jersey leaders of The Anti-Defamation League called the decision a "critical step forward in protecting Jewish workers in New Jersey" and said it "reaffirms the commitment of the New Jersey Supreme Court to ensuring that anti-Semitism has no home in the New Jersey workplace."
William Tambussi of Westmont, N.J.'s Brown & Connery, who represented Theodore Dorn, the former Haddonfield director of public safety, says, "In the end, while the Court made it clear ... that religion-related comments are impermissible, it did not disturb the finding that Jason Cutler suffered no damages."
Cutler's attorney, Clifford Van Syoc, who has a firm in Cherry Hill, N.J., did not return telephone calls seeking comment.
A bill in the Assembly Labor Committee, introduced in response to the Appellate Division's ruling, would expand the LAD to create a cause of action for verbal abuse based on a wide variety of personal matters, including religious and ancestry, created a hostile work environment. But the bill's sponsor, Neil Cohen, D-Union, resigned last week following the disclosure by two other Democratic lawmakers who share office space with him that they found child pornography on his computer.
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