The New Jersey Appellate Division Expands Hostile Environment Liability Under the LAD
On June 2, 2022, in Morris v. Rutgers-Newark University, the New Jersey Appellate Division decided, in a case of first impression, the extent to which a plaintiff alleging harassment in violation of the New Jersey Law Against Discrimination (“the LAD”) can use acts of harassment against others to establish the existence of a hostile environment. The case involved claims brought by members of the women’s basketball team of Rutgers-Newark University (“the University”), who were subjected to a hostile educational environment by the Interim Head Coach of the team. Although the case involved allegations of a hostile educational environment, the court’s decision is likely to be viewed equally applicable to hostile work environment claims and thus is one employers should be aware of.
The plaintiffs included five players and the team manager for the University’s women’s basketball team for the 2014-2015 season, five of whom identified themselves as Black or African American while one identified as Hispanic. Four of the plaintiffs identified themselves as either lesbian, gay, or bisexual. In addition to the University, the defendants included the team’s Interim Head Coach for that season, the University’s Athletic Director, and the University’s Associate Provost.
The plaintiffs brought suit in the Law Division of the Superior Court under the LAD alleging they were the victims of a hostile educational environment resulting from numerous racial and homophobic slurs directed at them or about others made by the Interim Head Coach, a white male. The plaintiffs also asserted they were retaliated against because they complained about the Interim Head Coach’s conduct.
After the defendants moved for summary judgment, the Law Division judge denied the motion as to plaintiffs’ hostile educational environment claims, but dismissed the retaliation claims of four of the plaintiffs. The Appellate Division granted leave sought by both sides to appeal these rulings on an interlocutory basis.
The Appellate Division’s Opinion
Hostile environment. The court affirmed the denial of the defendants’ motion for summary judgment on the hostile-environment claims based on race and sexual orientation. In doing so, the court rejected the defendants’ contention that the Law Division judge should have considered the evidence of a hostile educational environment on a plaintiff-by-plaintiff basis rather than on a cumulative basis. First, the court noted that the New Jersey Supreme Court has held, in the context of hostile work environment allegations, that a hostile-environment claim may be based “on the cumulative [e]ffect of individual acts” and “[r]ather than considering each incident in isolation, courts must consider the cumulative effect of the various incidents, bearing in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the . . . environment created may exceed the sum of the individual episodes.” Second, the court reasoned there is “nothing in our jurisprudence that would support the contention that a hostile environment cannot be formed in the mind of one member of a protected class even if the event or events that gave rise to that belief were directly experienced by another.” Thus, for purposes of summary judgment, a court “must accept as true that hostile words or actions against one would become known and indirectly experienced by all in this tight-knit group” so that the “plaintiffs were entitled to reach the conclusion that abusing one of them was abusing all of them.” In other words, evidence that supports a given plaintiff’s hostile-environment claim may include demeaning actions and slurs directed at another in the plaintiff’s protected group that the plaintiff did not witness but subsequently learns about.
The court also rejected the defendants’ contention that the Law Division judge should have analyzed separately the evidence pertaining to the protected categories of race and sexual orientation. The court was of the view that an alleged harasser of several groups is not “entitled to have his alleged venomous comments watered down in the eyes of the court or the factfinder by placing those comments in separate, watertight categories.” This led the court to conclude that “so long as the plaintiff is a member of a protected group that has been attacked, she would be entitled to claim the environment has been made hostile as the result of her having heard or learned of toxic statements directed toward those in other protected groups.” Thus the court appeared to hold that a plaintiff who alleges harassment on account of race, for example, would be entitled to have the jury find that the plaintiff’s environment became hostile based at least in part on harassment directed at a protected group of which the plaintiff is not a member.
Retaliation. The Law Division judge granted summary judgment for defendants on the retaliation claims of four of the plaintiffs, finding that they had no standing to assert such claims because none had engaged in any “protected activity,” i.e., none had complained about the Interim Head Coach’s harassing conduct. The Appellate Division, however, reinstated these claims. The court found the case to be analogous to the New Jersey Supreme Court’s decision in Craig v. Suburban Cablevision, Inc. There, the Supreme Court found that employees who worked closely with a colleague who was retaliated against for complaining about discrimination became “innocent victims” when the employer took reprisals against the complaining employee that also adversely affected his coworkers. The court held that these coworkers had standing to assert claims of retaliation although they had not made a complaint about discrimination. The Appellate Division thus concluded that the plaintiffs who may not have complained about the Interim Head Coach’s harassment of team members, nevertheless had standing to assert claims of retaliation if the defendants’ alleged retaliatory actions caused them some injury.
The Morris decision underscores the importance for employers presented with an employee’s claim of a hostile work environment to explore with that employee any harassment of other employees of which the employee may be aware and to thoroughly investigate any such allegations. The results of that investigation may well be relevant to the employer’s determination of whether the employee’s claims of a hostile work environment are valid and, if so, the scope of corrective action that may need to be taken.
For answers to any questions regarding this blog, please feel free to contact an attorney in the Gibbons Employment & Labor Law Group.