Two recent New Jersey state court decisions have extended the already broad protection afforded employees under the Law Against Discrimination (LAD), expanding dramatically the liability minefield already existing for employers doing business in New Jersey. In one case, the New Jersey Supreme Court held that a twenty-five year old could sue for age discrimination, claiming that his employer thought he was too young for a high level position. In another opinion, the Appellate Division ruled that two alleged comments by a low level supervisor concerning an employee's diabetes were sufficient to subject an employer to a jury trial (and potentially limitless damages) for a hostile work environment claim. These decisions further illustrate the necessity of mandatory programs ensuring that all employees are trained concerning inappropriate comments in the workplace, and that employment policies are completely neutral with respect to age and other protected statuses.
In Bergen Commercial Bank v. Sisler, the New Jersey Supreme Court held that the LAD's prohibition against discrimination on the basis of age protects adult employees of every age, and not merely older workers. It therefore reversed summary judgment, and reinstated a claim by a twenty-five year old that his employer discriminated against him because he was perceived as being too young. The Sisler Court recognized, however, that although the LAD does not foreclose an age discrimination action by a younger employee, this is not the primary intent of the statute. Accordingly, the Court held that a younger employee must "conform his proofs to a heightened 'reverse-discrimination' formulation" and must show "background circumstances supporting the suspicion that the defendant is the unusual employer who discriminates against the majority." Although permitting younger workers to bring age discrimination claims under LAD, the Sisler Court emphasized that employers may still base decisions on any number of reasons, including those that may be related to age, such as judgment and maturity.
The same week that the Sisler Court expanded the protection of LAD to include younger employees, the Appellate Division in Leonard v. Metropolitan Life Insurance Co. expanded the definition of a "hostile work environment" to include "handicap harassment" based solely on two disparaging comments by a low level supervisor about an employee's diabetes.
Plaintiff alleged that, on one occasion, his supervisor belittled his stated need to eat lunch, and then told him "get your diabetic ass out of here before you die in my office." In the second incident, plaintiff alleged that he was five minutes late for a meeting because, contrary to his supervisor's instructions, he stopped at his girlfriend's house for lunch after making a sales call. After the meeting, the supervisor purportedly reprimanded plaintiff saying, "I don't give a f___ about you being a diabetic and having low blood sugar. . . . We're going to do things my way or we're not going to do them" and "f___ [you] being diabetic and having to stop for lunch." Plaintiff admitted that he was unaware of any reason he could not have brought food to the meeting and that on occasion he had brought beverages to meetings.
The Appellate Division reversed the trial court's grant of summary judgment in favor of the employer, holding that a jury could find that a "reasonable diabetic" could perceive the workplace as "hostile" based solely on these two alleged comments by his immediate supervisor. This holding is a dramatic expansion of the New Jersey Supreme Court's decision last year in Taylor v. Metzger. There, the Court held that, although a single utterance will not usually form the basis for finding that a "hostile work environment" was created, the situation presented in Taylor was exceptional.
First, the alleged harasser was not a mere supervisor but the Sheriff of Burlington County, the highest ranking law enforcement officer in the county. The Sheriff allegedly hurled a racial epithet directly at plaintiff, in front of another supervisory employee. As the Court explained, "Racial epithets are regarded as especially egregious and capable of engendering a severe impact." Further, as the harasser was a high ranking official and the comment was made with another supervisor present, plaintiff had no one to whom she could effectively complain.
None of these aggravating factors was present in Leonard. The Leonard decision thus suggests a willingness by the Appellate Division to allow cases to proceed to trial whenever an employee claims that he has been the target of even just one or two offensive comments on the basis of any protected category, including handicap, gender, age, national origin or religion. In short, the decisions in Sisler and Leonard make it more important than ever for New Jersey employers to review their policies and procedures. Both federal and New Jersey courts have cautioned employers that they should have sex harassment training and education for their employees, and well-publicized, effective complaint procedures. As a result of these two recent decisions, employers should expand such training to cover all forms of discrimination. Employers should accordingly:
- Ensure that forms, policies and procedures are age neutral, and do not discriminate against younger employees.
- Provide effective and continuing training to employees and managers regarding appropriate speech and conduct in the workplace concerning all protected classifications. Training should not be limited to sex harassment.
- Review employment applications to ensure that they are age neutral and do not discriminate against employees based upon age (including youth).
- Review job descriptions and postings to ensure that requirements regarding years of experience are reasonable and are not intended to discriminate against younger employees.
- In addition to avoiding phrases that may be construed as reflecting a bias against older workers, employers should avoid "buzz words" that may reflect an "anti-youth" bias, such as "wet behind the ears," "kid," "baby," and the like.
- Avoid statements or decisions during the interview process based upon a perception that the candidate is too young for a position.
- Remind employees and managers that the company does not tolerate discriminatory comments of any kind.
- Ensure that anti-discrimination policies provide an effective complaint procedure for employees who believe that they have been subjected to any type of harassing or discriminatory comments or conduct.
We will be discussing these cases, as well as other recent developments in New Jersey law, at our annual client briefing in May. In the meantime, if you have any questions or concerns, or if we may be of any assistance respecting the issues raised in this Alert, please feel free to contact Robert Bernstein, Maxine Neuhauser, Carmine Iannaccone or Mark Lurie at (973) 642-1900.
This article is provided for informational purposes only and is not intended and should not be construed to constitute legal advice. If you have any questions pertaining to the issues raised in this article or if the firm may be of assistance to you, please let us know.
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