A “Hostile Environment” LAD Claim in a Police Station, a Place of Public Accommodation

Holmes v. Jersey City Police Department, 449 N.J. Super. 600 (App. Div. 2017).  Today’s decision by Judge Reisner in this case under the Law Against Discrimination, N.J.S.A. 10:5-2 et seq. (“LAD”), arises from the fact that the Appellate Division previously held that a police station is a place of “public accommodation” under the LAD.  Here, a transgender man asserted a hostile environment claim based on his assertion that while he was under arrest at the police station, “police officers made demeaning, insulting and threatening comments about his transgender status.  Specifically, he allege[d] that several officers referred to plaintiff as ‘it,’ referred to plaintiff’s situation as ‘bullshit,’ and stated ‘so that’s a fucking girl?’  He also asserts that one of the officers threatened to put his fist down plaintiff’s throat ‘like a fucking man.'”

The Law Division granted summary judgment to the defendant police department.  On appeal, Judge Reisner applied the de novo standard of review and reversed that ruling.  Plaintiff was “in a uniquely vulnerable position,” the hostile commenters were police officers, “who wield tremendous power over arrestees,” and a physical threat was involved.  Under those circumstances, a jury could find that a reasonable transgender person would consider the environment to be “hostile, threatening and demeaning.”

The lower court had relied on Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999).  But Judge Reisner found that reliance mistaken for multiple reasons.  That case employed a higher standard of proof to LAD cases that involved religious harassment, as opposed to racial or gender-based harassment.  Besides, a subsequent Supreme Court case, Cutler v. Dorn, 196 N.J. 419 (2008), overruled Heitzman in that regard.  Finally, even Heitzman recognized that “physically threatening or humiliating” remarks could give rise to a hostile environment claim, and plaintiff here alleged such remarks.  Judge Reisner also cited prior cases stating that “in the context of public accommodation discrimination, hostile comments that might not suffice to create a hostile environment in a work context may nonetheless violate the LAD.”

Judge Reisner also found unpersuasive defendant’s reliance on L.W. v. Toms River Regional School Bd. of Educ., 189 N.J. 381 (2007), discussed here.  That case involved harassment of a student by his classmates, a far cry from “police officers, in a position of authority over plaintiff, who was their prisoner.  In those circumstances, the impact of threatening and harassing conduct may be magnified, even if it only occurs on one day.”  Though “a certain amount of strong language may be expected in the confines of a police department,” there was no suggestion that this sort of conduct was operationally necessary.  Judge Reisner observed that such conduct could actually make the job of the police harder, in that those actions “may encourage other prisoners to attack the harassment victim, thus undermining the orderly operation of the police lock-up as well as the safety of the transgender prisoner.”