Client Alert

Contact:
Steven B. Harz, Esq., Chairperson
Labor & Employment Law Group
201-342-6000
August 8, 2008

NEW JERSEY SUPREME COURT RULES THAT RELIGIOUS SLURS
IN THE WORKPLACE MAY AMOUNT TO A HOSTILE ENVIRONMENT

Dear Clients and Friends:

On July 31, 2008, the New Jersey Supreme Court held in Cutler v. Dorn that a worker who is the target of racial slurs is entitled to the same protection as employees who are the target of sex or racial harassment. The Cutler decision is the first time the Court has articulated a test for determining whether religious harassment may constitute a hostile work environment.

The Court held that claims of harassment due to one's religion or ancestry are subject to the same standard of proof as are claims of harassment based on race or sex. In order to demonstrate a hostile work environment, the plaintiff must show that a reasonable person of his or her religious faith or ancestry would consider the workplace acts and comments made to, or in the presence of, the plaintiff to be sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment. The focus of the inquiry should be the harassing conduct itself, rather than its effect on the plaintiff or the work environment. Therefore, the conduct does not necessarily have to be directed at the plaintiff; rather, it must be objectively hostile in light of the totality of the circumstances. The Court cited its previous decision in Lehmann v. Toys ‘R' Us, Inc., stating that severe or pervasive conduct could be shown by numerous incidents that might not be considered severe if considered on their own.

The plaintiff in Cutler was a police officer in the Borough of Haddonfield, New Jersey, who had been subjected to numerous derogatory comments about his Jewish faith and background by his coworkers and his superiors. Some of the comments had been made directly toward him, and some were merely made in his presence. The Court determined that the remarks were degrading and conveyed ongoing hostility toward Jewish people, and found that they could be viewed objectively as humiliating to a person of Jewish faith or ancestry.

The Court rejected the Borough's claims that the comments were made in a joking manner and that they should be considered in the context of a workplace where derogatory humor was commonplace. The Court stated that, viewed objectively, those comments created a humiliating and painful environment for a person of Jewish faith or ancestry. The Court emphasized that it does not accept such defenses in cases of racial or sexual harassment, and will not accept them in cases of religion or ancestry based harassment.

If you have any questions with regard to the application of this case to your Company or with respect to any other labor and employment law matter, please do not hesitate to contact Steven Harz, Esq. at (201) 342-6000, or via email at sharz@hertenburstein.com