Rios v. Meda Pharmaceutical, Inc., ___ N.J. ___ (2021). In Taylor v. Metzger, 152 N.J. 490 (1998), the Supreme Court held that a single racial epithet “was sufficiently severe to contribute materially to the creation of a hostile work environment.” The Court there reversed a summary judgment for the employer.
The facts of today’s decision by Chief Justice Rabner, for a unanimous Court, involved two “highly offensive” slurs. Plaintiff alleged that, about one month after he began work at the defendant company, during a conversation about plaintiff’s plan to buy a new house, his supervisor said “it must be hard for a Spic to have to get FHA [Federal Housing Administration] loans.” Several weeks later, plaintiff charged, the same supervisor commented that an actress auditioning with plaintiff and the supervisor for a company commercial “would work if she didn’t look to Spicky.” (Chief Justice Rabner noted that the Court had “use[d] the offensive language in the record because it bears directly on the issue this appeal presents. We mean no disrespect.” For that same reason, this post has quoted those slurs.)
The supervisor denied making the two statements. Plaintiff reported each incident to the company’s Director of Human Resources, but the Director was “dismissive,” and the company took no action. Thereafter, the supervisor placed plaintiff on probation for poor performance, put him on a performance improvement plan, and ultimately fired him. The supervisor certified that the firing was due to plaintiff’s poor performance and “had nothing to do with his national origin[ ] or gender.”
Plaintiff sued the company, the supervisor, and the Director of Human Resources, asserting a hostile work environment claim under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”) and other claims. The Law Division granted summary judgment for defendants, stating that no rational jury could find that the supervisor’s statements created a hostile work environment. The Appellate Division affirmed, but on different grounds. That court said that the statements could sustain a hostile work environment claim, but upheld the summary judgment due to “the absence of evidence that Rios faced adverse employment consequences because of his complaints about [the supervisor’s] comments, and … the lack of corroboration for his testimony.” The Supreme Court granted review and reversed.
Chief Justice Rabner noted that the LAD’s goal is “nothing less than the eradication of the cancer of discrimination.” Thus, the LAD is remedial legislation that should be liberally construed to advance its purposes. The Chief Justice then went over the caselaw on and elements of hostile work environment claims. The key element here was “whether the conduct was sufficiently severe or pervasive,” an inquiry that is to be “measured by the surrounding circumstances.” Those circumstances included the identity of the person who engaged in the alleged misconduct (“the severity of a remark can be ‘exacerbated’ when it is uttered by a supervisor,” the Chief Justice said), and the egregiousness of an epithet (“an unambiguously demeaning racial message” or an “ugly, stark and raw” racist slur can be enough to support a claim even if used only once).
An objective standard governs. “Thus, for a hostile work environment claim based on offensive comments directed to a Hispanic employee, the remarks must be viewed from the perspective of a reasonable Hispanic person in the plaintiff’s position.” The de novo standard of review applied to the grant of summary judgment.
The Court held that a rational jury could find that the alleged slurs were severe enough to create a hostile work environment, viewed “from the perspective of an objectively reasonable Hispanic person.” The epithet used– “sp–“– is well-recognized as “derogatory” and “highly insulting,” Chief Justice Rabner said, citing caselaw and other sources. The situation was exacerbated by the fact that the statements were made by a supervisor. It did not matter that the second statement was not about plaintiff. It was directed at him, and under Lehmann v. Toys ‘R’ Us, 132 N.J. 587 (1993), the leading hostile work environment case, “the treatment of others,” as well as the treatment of the plaintiff, affects the plaintiff’s work environment. Finally, if plaintiff proved that he reported the statements but the company took no action, that would add more weight to plaintiff’s claim.
In a footnote, Chief Justice Rabner rejected the Appellate Division’s rationale that plaintiff needed to offer proof of an adverse employment action or retaliation in order to support a hostile work environment claim. He quoted language from both Taylor and Lehmann that said no such proof was needed. Nor was it fatal that there was no evidence to corroborate plaintiff’s testimony. The jury was to weigh that testimony and all other evidence.
Finally, the Court found Taylor not supportive of defendants. The facts of that case differed from those here. But more importantly, Taylor “did not establish a floor or set minimal factual requirements for a hostile work environment claim. The Court instead applied an analytical framework to assess the relevant facts,” which was what the Court did here as well, the Chief Justice said.