NJ Supreme Court Holds a Supervisor’s Use of Two Racial Slurs Was Enough to Send the Claims to a Jury
On June 16, 2021, the New Jersey Supreme Court ruled in Rios v. Meda Pharmaceutical, Inc., Tina Cheng-Avery, Glenn Gnirrep, et. al. that a supervisor’s use of two offensive slurs based on race/national origin and directed at a Hispanic employee was sufficiently “severe and pervasive” to establish a hostile work environment claim under the New Jersey Law Against Discrimination (“LAD”), survive summary judgment, and proceed to trial.
In Rios, Meda Pharmaceutical, Inc. (“Meda” or “Company”), hired plaintiff, Armando Rios, Jr., a Hispanic male, as the Company’s Director of Brand Marketing, reporting to individual defendant Tina Cheng-Avery, the Senior Director of Commercial Operations (“supervisor”). Plaintiff alleged that his supervisor directed the term “Sp–” towards him while at work. More specifically, plaintiff claimed that a month after his hire in May 2015, he told his supervisor that he and his wife were searching for a new home, and, in response, she stated, “it must be hard for a Sp– to have to get FHA loans.”
According to plaintiff, shortly after this comment was made, his supervisor allegedly stated to him that an actress who had been “auditioning” for a company commercial would be hired “if she didn’t look too Sp–ky.” (Chief Justice Rabner noted that the court had used “the offensive language in the record” as it directly concerned the issue presented on appeal, and we have done so in connection with this blog post). For her part, plaintiff’s supervisor denied making either alleged statement.
Plaintiff further claimed that in accordance with the company’s EEO policy and complaint procedure in place at the time, he met with (individual defendant) Glenn Gnirrep, Meda’s Director of Human Resources, after each incident and reported his supervisor’s comments. According to plaintiff, Gnirrep was “dismissive” in each instance. Gnirrep passed away and was unable to be deposed in the case.
Defendants moved for summary judgment, and in March 2019, the trial court granted the motion and held that no “rational factfinder” could find that the supervisor’s purported two comments were “sufficiently severe or pervasive to create a hostile work environment” under the LAD. Thus, the court dismissed plaintiff’s claim.
The Appellate Division affirmed the trial court’s dismissal on other grounds. The court acknowledged that the offensive slur used by plaintiff’s supervisor was “a national origin epithet” that could have satisfied the “severity” requirement necessary to establish a hostile work environment claim under the law – even if stated only twice. The court, however, focused on the lack of corroboration for plaintiff’s claims and lack of evidence that plaintiff suffered any adverse consequences resulting from his supervisor’s comments. Plaintiff then petitioned the New Jersey Supreme Court for cert., and the petition was granted.
Plaintiff argued to the court that summary judgment was inappropriate because his supervisor’s use of “multiple racial slurs” towards him was sufficient to support his hostile work environment claim, particularly because the comments were made by Cheng-Avery in her role as his supervisor. Defendants countered that there were no facts to establish that the comments at issue (which were not corroborated) were “severe enough” to support plaintiff’s claim, and that the law should not be extended so far to mean that any “racial slur” made in the workplace “automatically” created liability for a hostile work environment.
In a 7-0 decision, the New Jersey Supreme Court reversed the judgment of the Appellate Division and remanded the matter for further proceedings. For the reasons discussed below, the court held that, given all of the circumstances, a “rational factfinder” could find that the alleged slurs directed to plaintiff were “sufficiently severe” to create a hostile work environment under the LAD.
First, the court found that the alleged comments at issue were “highly offensive and demeaning slurs from the perspective of an objectively reasonable Hispanic” and had “no place in a work-setting.” As to the first comment directed at plaintiff and concerning his search for a home, the court discussed the history of the term “Sp–” and explained that the slur reflected a “history of disdain” towards Latinos and that its “highly insulting nature” was well recognized. As to the second comment about the actress, the court found it conveyed an “equally troubling message” despite not being directed towards plaintiff and reflected the view that individuals of a “certain national origin or race” could not represent the Company.
Second, the court found that Cheng-Avery’s position as a supervisor increased the severity of the comments, noting the responsibilities of a supervisor to prevent racial harassment in the workplace, and that when taken together, the comments, from plaintiff’s perspective, could “taint every interaction” between him and his supervisor.
Third, the court noted that plaintiff claimed to have reported the purported incidents to Meda’s Director of Human Resources, who did nothing to address the situation. Thus, the court explained that if plaintiff, as he claimed, had made a report of discrimination, the Company had a chance to correct the problem going forward and failed to do so.
Accordingly, the court found that a “reasonable Hispanic employee” could view the supervisor’s alleged comments as “portray[ing] an attitude of prejudice that inject[ed] hostility and abuse” into the workplace and altered the terms and conditions of plaintiff’s employment. Accordingly, a “rational fact finder” could determine the purported conduct was “sufficiently severe or pervasive” to create a “hostile work environment” under the LAD, and, as a result, plaintiff’s claim could withstand summary judgment.
Based on this decision, employers should be aware that derogatory slurs (whether based on race, national origin, or any other protected category), particularly when made by supervisors, may be sufficient to support claims of hostile work environment harassment, even if such comments are few in number. Employers should also consider this case when drafting EEO and anti-harassment policies going forward and when conducting training on such issues.
If you have any questions regarding this blog, please feel free to contact an attorney in the Gibbons Employment & Labor Law Group.