A lout is an awkward, ill-mannered, or uncouth person. It typically refers to a boorish man who displays a distinct lack of respect for social norms or a basic comprehension of acceptable social norms. It can also imply foolishness or general stupidity. A lout can create a racially hostile work environment without any conscious and deliberate intent to cause harm.
“Intent” Is Simply Not Part of the Claim.
What to do if your workplace feels hostile based on racist jokes or demeaning comments made by an employee-lout, who seems to have no sense of the inappropriateness of his speech, and in whom you cannot detect any deliberate intent on his part to hurt you or be racist to you or others? The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., prohibits discrimination and harassment in employment, based on being a member of a protected class under the statute. In a hostile environment race case brought under this statue, a Plaintiff does not have to allege or prove the harasser intended to be racist. His or her intention is irrelevant. “Intent” is simply not part of the claim.
Don’t sit on your rights. If your workplace feels hostile because you are a member of protected class, you should contact this law office immediately for a free consultation. I have represented employees who were illegally harassed/discriminated against, and 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. New Jersey Race Discrimination Lawyer. This law office accepts cases from all over New Jersey and has locations in Southern, Central and Northern NJ to meet with clients. Call today for a free consultation.
See NJ Race Discrimination Attorney, Race Harassment Causes Hostile Work Environment Even When Conduct Not Directed at Complaining Employee.
A Joke Is Not Joke When it Demoralizes People.
People with internalized racial stereotypes and biases frequently are not aware of how racist they actually are, and how much damage they can do to others. A joke is not joke when it demoralizes people. New Jersey Race Discrimination Lawyer. This internalized ignorant racist prejudice can result in making extremely ignorant and hurtful racist comments, even incorporating severe racist epithets such as, “Did you hear the joke about the two ******* who were walking to catch a bus?” The NJ Supreme Court held that single utterance of a racist epithet can, under particular circumstances, create a hostile work environment, Taylor v. Metzger, 152 N.J. 490 (1998), a race harassment case.
The Taylor v. Metzger Court held that a racial slur uttered by a sheriff directed against a subordinate officer is not, as a matter of law, a mere insult or triviality, but instead was a egregious racist epitaph. In order to demonstrate hostile work environment, a plaintiff must allege that unwelcome conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. Under the New Jersey Law Against Discrimination (NJ LAD), the racial harassing conduct must be either pervasive or severe, not pervasive and severe. The elements of “pervasive” or “severe” are inversely proportionate. The required showing of severity or seriousness of the harassing conduct, varies inversely with the pervasiveness or frequency of the conduct.
Whether the complained of conduct was ongoing and pervasive, or was a single extreme incident, the employer’s liability must be made on a case-by-case basis after considering the totality of the circumstances. Employment/Civil Rights Law.
The Taylor v. Metzger Court stated that it will be a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable person who is a member of the same protected class as the Plaintiff, make the working environment hostile. However, it is certainly possible that a single incident, if severe enough, particularly when it’s an egregious racist epitaph, can establish a prima facie case of a hostile work environment. In Taylor v. Metzger, regarding the Plaintiff’s racial discrimination claim based on workplace harassment, the court held that the 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. See Extreme Race Discrimination Including Nooses, KKK Emblems, and Racist Names at Work.
Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment, than the use of an unambiguously racial epithet ****** by a supervisor in the presence of his subordinates. The use of the word ****** automatically separates the person addressed from every non-black person. The fact that black employees also may have spoken the term ****** does not mitigate the harm caused by use of that epithet. A supervisor's use of the term impacts the work environment far more severely than use by co-equals.
When the Conduct is Ongoing and Pervasive Over Time, No Magic Number of Incidents is Required
Within the totality of circumstances, there is neither a threshold "magic number" of incidents, jokes or acts, or racist assumptions spoken out loud, that gives rise, without more, to liability as a matter of law. As a federal court said, a race harassment claim brought under the federal statute, Title VI, “In most cases, the alleged number of harassing incidents is greater than one, but cannot be said to constitute a pervasive pattern.” Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (1993).
What’s in a Joke?
The connotation of continuous racist jokes itself can materially contribute to the remark's severity and its psychological effect. When acts of racial epithets occur in one’s workplace, they are especially egregious and capable of engendering a severe impact.
What’s in a Joke? Documentation and Reporting
An employee who feels his or her workplace has become hostile due to his or her race, should immediately take steps to document these facts every time they arise and report it to HR in writing, so the employer is put on notice and can take remedial measures. Additionally, it will assist the employee as to the production of evidence if he/she subsequently wants to file a lawsuit.
The employee should report the racist behavior and other harassment in writing to HR also for the reason that the employer may escape legal liability if the employer, while defending on a lawsuit, can subsequently prove that the employer had no knowledge of the racist behavior or racial harassment.
What’s in a Joke? Don’t Make Assumptions
The employee therefore should maintain a personal log with the date, the circumstances, the names of the persons present, and what words were spoken, etc. This helps for litigation purposes should he later decide to file a lawsuit. Additionally, that maintaining a personal log will assist him in his reporting the acts to management.
Don’t make assumptions that management will automatically believe in the veracity of the complaints. This country has never had an open and honest dialogue about systemic and individual racism,. Management is generally not comprised of Black-majority personnel and has no direct experience of being the personal target of racism. A Black employee who complains about racism to management may be met with Human Resources’ and management’s disbelief, and certitude of their own belief that this could not possibly be happening in their workplace.
When an employee plaintiff files a lawsuit alleging racial harassment under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., among other factors to be demonstrated, he/she must demonstrate:
1. that the defendant's conduct would not have occurred but for the plaintiff’s race; and
2. that the conduct was severe or pervasive enough to make a reasonable person who is a member of the same race as is the Plaintiff believe that the conditions of employment are altered and the working environment is hostile or abusive.
Individuals who have not walked in another’s shoes, or have not personally experienced being the victim of another’s inherent racism, whether it be in the workplace or in other areas of their life, have no real sense of how deeply debilitating jokes, words and acts of race harassment are to a person who is a member of a historically disadvantaged class, such as African American. Persons who have racist assumptions, may not realize how their own internalized race-biased assumptions result in racist jokes and a disparity between their treatment of persons of different races, resulting in making hurtful and demoralizing comments such as, “You are really intelligent for a Black man."
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 standard contemplates conduct that is either severe or pervasive. Although the conduct may be both, 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, and that determination is left to the trier of fact.
The connotation of a racist epithet itself can materially contribute to the remark's severity. Racial epithets are regarded as especially egregious and capable of engendering a severe impact. Ethnic Origin claims can also be part of a Race claim. New Jersey Ethnic Discrimination Lawyer.
For persons born either in the United States or in some parts of the world, in addition to Ethnic Origin and Race Claims, harassment could also be based on a person’s religion. New Jersey Religion Discrimination Lawyer.
Don’t sit on your rights.
I have represented employees who were suffered a race-based hostile work environment, were illegally discriminated against by their employers, and 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 think you are being discriminated against, you should contact this office immediately 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.
Contact Hope A. Lang, Attorney at Law today 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.