NJ STATE PBA LEGAL CORNER
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
The courts have often struggled with the level of proof necessary to send a case to the jury on a hostile work environment claim, Recently, the New Jersey Supreme Court issued a decision in which it had little, if any, trouble finding that demeaning and contemptuous slurs allegedly directed at an employee by an immediate supervisor were sufficient to create an issue to be decided by a jury. In this day and age, this decision sends an important message to employers.
In Rios v. Meda Pharmaceutical Inc., the court considered whether two offensive slurs could support a hostile work environment claim under the Law against Discrimination (LAD). The facts are as follows:
Plaintiff, Armando Rios, a Hispanic male, was hired by Meda as its director of brand marketing in May 2015. Within a short period of time after his hiring, Rios alleged that his immediate supervisor directed two ugly slurs at him. First, in a discussion with his supervisor one month after his hiring about purchasing a home, Rios alleged that his supervisor stated that, “It must be hard for a Spic to have to get FHA loans.” (Note: This quote is taken directly from the court’s opinion and was critical in the court’s analysis. The authors mean no disrespect.)
Then, several weeks later, when discussing hiring an actress for a Meda TV commercial, Rios alleged that his supervisor told him that the actress would work for the commercial, “If she didn’t look too Sp‑‑ky.”
His supervisor denied making the two statements. Rios reported the incidents to the director of human resources whom he alleged was dismissive and did not take notes. The HR director passed away before he could be deposed in the lawsuit.
In February 2016, his supervisor placed Rios on probation for poor performance and gave him a performance improvement plan. After receiving generally unfavorable assessments from his supervisor, Rios was fired in June 2016. He filed a lawsuit against Meda and his supervisor, alleging, in part, that defendants violated the LAD by creating a hostile work environment. He pointed to his supervisor’s two comments as examples of the severe and pervasive harassment and national origin discrimination he experienced.
In the trial court, defendants filed a motion for summary judgment in which a court is required to accept the plaintiff’s allegations as true for purposes of the motion. The trial court granted defendants’ motion, finding that no jury could conclude that the supervisor’s two comments, even if made, were sufficiently “severe or pervasive” to create a hostile work environment. The Appellate Division affirmed. The Supreme Court agreed to hear Rios’ appeal.
The Supreme Court unanimously reversed the Appellate Division’s decision and sent the case back for trial. The court noted that a key element of a hostile work environment claim under the LAD is whether the complaint of conduct is sufficiently severe or pervasive under all the circumstances. It held that, in most cases, the cumulative impact of separate successive incidents could create a hostile work environment. And, in rare cases, even a single incident or comment
could also create a hostile work environment. The court further stated that a racial slur can contribute to the remark’s severity and that can be aggravated when it is spoken by a supervisor. Based on this analysis, the court had no trouble concluding that the “highly offensive and demeaning slurs” allegedly from Rios’ supervisor were sufficiently severe or pervasive to create hostile work environment. The court, therefore, remanded the case for trial.
It is important to note that the court did not decide that the supervisor, who denied making the statements, in fact made them, or that Rios reported them to the HR director. Nor did the court conclude that a jury must find that, even if made, the slurs rose to the level of creating a hostile environment. These are facts that would be decided by a jury. The court only decided that the facts alleged in Rios’ complaint, if true, could support a hostile work environment claim under the LAD.
The decision is important for all law enforcement officers, whether you are a supervisor or a rank-and-file officer. If you are a supervisor, you may be subject to liability and you may subject your agency to liability if you direct these types of slurs at officers under your supervision. If you are on the receiving end of racial or ethnic slurs, or slurs based on sex or gender identity, you may have a hostile work environment claim under the LAD. It is important that you know your agency’s harassment policy and consult with experienced lawyers to determine what steps you should take.