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Non-Jewish Employee Subjected to Anti-Semitic Harassment May Proceed with Religious Discrimination Claim

The New Jersey Appellate Division recently reversed a trial court’s granting of summary judgment dismissing an employee’s claim under the New Jersey Law Against Discrimination when Defendants wrongly perceived the employee to be Jewish and directed daily Anti-Semitic comments at him. The court disagreed with the trial court’s determination that the employers’ perception that the employee was Jewish, when he in fact was not, did not provide grounds for a recognizable claim under of religious discrimination under the New Jersey Law Against Discrimination.

In Cowher v. Carson & Roberts Inc., the claimant, Mr. Myron Cowher, was employed with Carson & Roberts Inc. as a truck driver from April 2006 through May 2008. From January 2007 through May 2008, Mr. Cowher was subjected to Anti-Semitic statements that were made directly to him by his two supervisors on a daily basis and often in the presence of other coworkers. Although the employer initially denied making such statements, video recordings revealed Mr. Cowher’s supervisors made various Anti-Semitic statements to Mr. Cowher. For example, Mr. Cowher’s supervisors called him a “Jew bag” over 20 times, called him a “Jew bastard” and told him “Only a Jew would argue over his hours.”

Mr. Cowher’s supervisors stated that the comments were made not because they perceived Mr. Cowher to be Jewish but instead because he and his wife took a cut of a Superbowl pool they ran and thus “fit the stereotype of Jews being avaricious.” The employer claimed that these comments were nothing but “light hearted banter between co-workers.” Mr. Cowher did not agree that these comments were “light hearted banter” and complained to the supervisors and to the Facility Manager. The Facility Manager told Mr. Cowher to laugh it off and then after making another complaint, Mr. Cowher was told to ignore it and it would go away.

In reversing the trial court’s granting of summary judgment in favor of the employer, the Court found Mr. Cowher satisfied the first prong of a case of discrimination which requires an employee to prove the employer’s conduct would not have occurred but for his/her membership in a protected class (in this case Judaism). The Court stated that if Mr. Cowher could “demonstrate that the discrimination he claimed to have experienced would not have occurred but for the perception that he was Jewish, his claim is covered by the LAD.”

To further illustrate the point that discriminatory behavior fueled by inaccurate perception of a person’s membership in a protected class is a violation of the NJLAD, the Court cited to several disability discrimination cases where New Jersey courts found that an employer who wrongly perceived an employee to have a disability and took adverse actions against that employee based on those assumptions violated the NJLAD. For example, in Anderson v. Exxon Co., the Court found Exxon discriminated against Anderson when they did not hire him because they incorrectly assumed he had a disability that would prevent him from performing the functions of the job.

The Court noted that an employer’s defense that discriminatory statements were made in the workplace as part of humor, teasing or as Defendants referred to it, “light hearted banter”, would not negate a claim of a hostile work environment under the New Jersey Law Against Discrimination. The Court concluded that the statements made to Mr. Cowher were severe and pervasive enough to establish the second prong of a claim for a hostile work environment under the New Jersey Law Against Discrimination. Further, the Court found Mr. Cowher established the third and fourth prongs, which require proving employer’s conduct to be so severe and pervasive that a reasonable person in the employee’s position would believe that the conditions of his/her employment were altered and the work environment was hostile or abusive. The Court stated that even though Mr. Cowher was not Jewish, the comments made by his supervisors were real discrimination and harassment of the kind that the New Jersey Law Against Discrimination seeks to eliminate.

By reversing summary judgment in this case, the Court supported the purpose of the New Jersey Law Against Discrimination to change existing conduct and did not allow Carson & Roberts slew of Anti-Semitic and discriminatory comments to be excused because their target, Mr. Cowher, happened not to be Jewish after all.