Employee supervisors may gaslight workers with disabilities or otherwise treat them in a dismissive manner, exclude them from meetings, etc. Co-workers may tell jokes regarding a disability or make fun of certain disabilities. This dismissive treatment may become severe or pervasive enough to make an employee believe that their working environment is hostile or abusive. They may wonder if they have an actionable claim of a hostile work environment under the New Jersey Law Against Discrimination.
Don’t sit on your rights. If you are experiencing harassment in the workplace, you should contact this office immediately for a free consultation. I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were subjected to a hostile work environment and in recovering financial renumeration for lost wages, humiliation, pain and suffering. If you are experiencing harassment, you should contact this office immediately at 201 599-9600 for a free consultation
In New Jersey, to prevail on a hostile work environment claim, a plaintiff must show:
(1) that he or she is in a protected class under the under the Law Against Discrimination (LAD), N.J.S.A. §§ 10:5-1 to 10:5-49, such as protected classes of disability, age, race, sex, etc.;
(2) that he or she was subjected to conduct that would not have occurred but for that protected status;
(3) that the objectionable conduct was severe or pervasive enough to alter the conditions of employment;
4) that the objectionable conduct was severe or pervasive enough to make a reasonable person in that same protected class as the plaintiff believe,
(5) that the work environment was hostile or abusive.
Severity and Workplace Hostility Are Measured by Surrounding Circumstances.
In assessing hostile work environment claims, all the circumstances must be looked at including 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. Every case is fact specific. Female employees with certain disabilities may be treated more dismissively than their male counterparts with the same disability. See NJ Disability Attorney, When Employers Discriminate More Against Female Workers with Cancer than Men. If female employees are treated disparately from men with the same disability, they may have an additional claim of sex discrimination. Bergen County Sex Discrimination Lawyer.
The Conduct must Be Pervasive Enough or Sufficiently Severe to Be Actionable. It Does not Have to Be Pervasive and Severe.
It is a rare and extreme case in which a single objectionable incident will be so severe that it would, from the perspective of a reasonable person in the same protected class as the Plaintiff, alter the work environment to the extent that the work environment has become hostile. However, many offensive utterances, jokes or conduct, which if standing alone would not suffice for an actionable hostile work environment claim, if they are repeated over a continuum of time, can create a workplace that has become hostile, i.e., when the objectionable incidents are pervasive over time.
Burdens of Proof, Employee Burdens of Proof
When an employee plaintiff alleges a harassment or hostile work environment under the Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1 to -42, the Plaintiff must demonstrate that the defendant's conduct would not have occurred but for the employee's protected class, and the conduct was severe or pervasive enough, that it would make a reasonable person who is a member of the same protected class as the Plaintiff, standing in the shoes of the Plaintiff, believe that the conditions of employment are altered and the working environment is hostile or abusive.
For example, if a plaintiff with a disability alleges disability harassment under the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1 to -42, the employee plaintiff must demonstrate that the defendant's conduct would not have occurred but for her disability; and the conduct was severe or pervasive enough that it would make a disabled reasonable employee standing in her shoes believe that the conditions of employment are altered and the working environment is hostile or abusive.
This standard is the same for all protected classes under the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1 to -42 (NJLAD). For example, if the harassment is because of race and an African American plaintiff alleges racial harassment under the NJLAD, she must demonstrate that the defendant's conduct would not have occurred but for her race; and the conduct was severe or pervasive enough to make a reasonable African American believe that the conditions of employment are altered and the working environment is hostile or abusive.
But as the New Jersey Supreme Court held in Taylor v. Metzer, it is certainly possible that a single incident, when sufficiently severe, can establish a prima facie case of a hostile work environment. For example, in Taylor v. Metzer, 152 N.J. 490 (1998), which was a race case, the court held that a single utterance of an extreme epithet can, under particular circumstances, create a hostile work environment. It explained that the standard contemplates conduct that is either severe or pervasive. Although many of the cases considering hostile environment harassment claims involve a pattern of inappropriate conduct, there is no requirement that harassment occur more than one time in order to be actionable.
The Determination Is Left to the Jury, the Trier of Fact
The Supreme Court emphasized that although the objectionable language or inappropriate conduct may be both severe and pervasive, only one of the qualities must be proved in order to prevail. The severity of the conduct may vary inversely with its pervasiveness. Whether the conduct is so severe as to cause the environment to become hostile or abusive can be determined only by considering all the circumstances. That determination is left to the jury, the trier of fact.
In Taylor v. Metzer, regarding her discrimination claim based on workplace harassment, the Court found that plaintiff presented sufficient evidence from which a rational factfinder could have found that defendant engaged in discriminatory harassment by uttering a racial epithet that was sufficiently severe to have created a hostile work environment. The same analysis applies to workplace harassment based on disability.
An employee who is disabled should not be harassed because of the disability and should be given a reasonable accommodation to allow the disabled person to remain employed. See NJ Employment Attorney, Employee Managers Requiring Disability Accommodation Pressured into Resigning. Older workers who are disabled may also have an age discrimination claim. New Jersey Age Discrimination Lawyer.
What You Can Do
If you are being subjected to unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation. I have represented numerous employees who were discriminated against, and I was successful in recovering financial compensation for their emotional pain and suffering, and moneys for lost wages, both for past lost wages and projected future lost wages.
If you resign, you may lose right to prevail in a lawsuit.
In many instances of discrimination and retaliation, if you resign, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of resigning, or think you will be fired, or have been fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you. I accept cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients. Call now for a free consultation.
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.