In order to state a claim of illegal discrimination under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et. seq.,( “LAD”), a plaintiff must show by a preponderance of the evidence that she/he suffered discrimination because of they are a member of a protected class under the LAD, i.e., when the plaintiff is a female alleging sex discrimination, see Bergen County Sex Discrimination Lawyer, the discrimination must be because she is a female; when the plaintiff is an African American alleging race discrimination, the discrimination must be because she is an African American.
DON’T SIT ON YOUR RIGHTS. If you are being subjected to such unlawful workplace discrimination or believe you are being pushed out of your job, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept cases from all over the state and have locations in northern, central and southern NJ to meet with clients. Call today for a free consultation.
Hostile Work Environment Claims Require Four Elements
When a discrimination claim is based on a hostile work environment ( as opposed to a claim based on a discriminatory adverse act such as disparate pay or an illegal termination - see NJ Employment Discrimination Attorney, Employment Discrimination Must Be 1 of 2 Things ) to establish a hostile work environment cause of action under the LAD, the NJ Supreme Court in Shepherd v. Hunterdon Dev. Ctr 174 N.J. 1 (2002) articulated that the plaintiff must satisfy four elements, specifically, the Plaintiff:
1) Must show that the complained-of conduct would not have occurred but for the plaintiff’s protected status, i.e., because the Plaintiff had protected status of sex, age, race, disability, etc., or other protected classes under the LAD; see Disability Law.
2) The complained-of conduct was severe or pervasive enough;
3) To make a reasonable person of the same protected status as the Plaintiff believe that;
4) The conditions of employment have been altered and that the working environment is hostile or abusive.
See NJ Age Discrimination Attorney, I’m a Reasonable Older Employee Getting Harassed at Work, What’s Reasonable?
A Hostile Work Environment Claim Based on Sex, May or May Not Be Sexual in Nature
In a hostile work environment claim based on sex, the harassing conduct may or may not be sexual in nature, provided it occurs because of the victim's sex. Lehmann v. Toys 'R' Us, 132 N.J. 587 (1993).
In this seminal case on hostile work environment claims, Lehmann v. Toys 'R' Us, the NJ Supreme Court stated that the inquiry into what is severe or pervasive in a sexual harassment claim brought by a woman is intwined with whether a reasonable woman would believe the conditions of her employment are altered and the working environment is hostile. Lehmann, 132 N.J. at 604. Other courts have extended this rationale to plaintiffs in other protected classes, and the inquiry into what is severe or pervasive in a hostile work environment claim is intwined with whether a reasonable person, of the same protected class as the Plaintiff and standing in the Plaintiff’s shoes, would believe the conditions of his/her employment are altered and the working environment is hostile.
Discrimination Law Is Not Intended to Be a General Workplace Civility Code.
The New Jersey Law Against Discrimination is not intended to be a general workplace civility code according to the NJ Appellate Division and the NJ Supreme Court. Discourtesy or rudeness should not be confused with gender discrimination. Herman v. Coastal Corp., 348 N.J. Super. 1, 21 (App. Div. 2002), and Shepherd v. Hunterdon Dev. Ctr. 174 N.J. at 25. The burden of proving discrimination remains with the employee at all times.
As the Court in Lehmann stated, “Common sense dictates that there is no LAD violation if the same conduct would have occurred regardless of the plaintiff's sex. For example, if a supervisor is equally crude and vulgar to all employees, regardless of their sex, no basis exists for a sex harassment claim. Although the supervisor may not be a nice person, he is not abusing a plaintiff because of her sex. However, to establish an LAD claim, all that is required is a showing that it is more likely than not that the harassment occurred because of the plaintiff's sex.”
See NJ Professional Women Sexually Harassed by Supervisors at Work.
The “reasonable person” standard does not allow claims based on the idiosyncratic response of a hypersensitive plaintiff to conduct that is not objectively harassing. Lehmann, 132 N.J. at 613.
In another Supreme Court case, Godfrey v. Princeton Theological Seminary, the Court stated that when evaluating a hostile environment claim, the Court must examine the severity or pervasiveness of the offending conduct under the totality of the circumstances, including:
1) Its frequency;
2) Its severity;
3) Whether it is physically threatening or humiliating or a mere offensive utterance; and
4) Whether it unreasonably interfered with an employee's work performance.
The United States Supreme Court has used the same examination, that the "objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, (1998).
However, it is possible that one incident may be severe enough to create a hostile environment when judged from a reasonable person of the same protected class standing in the Plaintiff’s shoes, considering all the circumstances.
In Taylor v. Metzger, 152 N.J. 490(1998), the court held that a county sheriff saying about an African American sheriff's officer, "there's the jungle bunny" in presence of another supervisor was sufficient, standing alone, to create hostile environment. See Extreme Race Discrimination including Nooses, KKK Emblems, and Racist Names at Work.
Put the Employer on Notice, Documenting and Reporting the Harassment.
The employer cannot stop the harassment if they have no notice of it. See New Jersey Race Discrimination Lawyer. It is important that you document and report the harassment. To read more on documenting and reporting the harassment, see NJ Employment Attorney, Harassment Discrimination at Work.
Don’t Sit on Your Rights - What You Can Do
I am an aggressive and compassionate employment law attorney who is experienced and successful in representing women, persons of color, older workers, LGBTQ and disabled persons and in obtaining monetary compensation for their being subjected to harassment and discrimination. I have successfully represented employees who were either terminated or forced out of their employment because of the bias against them.
If you are being subjected to such unlawful workplace discrimination or believe you are being pushed out of your job, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.