Articles Posted in Sexual orientation discrimination

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The New Jersey Appellate Division recently reversed a trial court’s decision dismissing an employee’s claims for sexual orientation discrimination under the New Jersey Law Against Discrimination. In remanding the case for trial, the Appellate Division found that the school employer’s motivation for forcing the employee teacher to resign is a question of fact for the jury to decide at trial.

In the case, Savoie v. The Lawrenceville School, Michael S. Cary and Catherine Boczkowski, Mr. Savoie, a homosexual, was employed as a teacher at The Lawrenceville School in 1982 until June 2003. During his approximate twenty (20) year career, Mr. Savoie received many awards and even held the position of Department Chair at one point. In 1991, Mr. Savoie’s domestic partner, Richard Bierman, moved into his on-campus housing with him. At this point, the two of them began an openly gay lifestyle. Thereafter, Mr. Bierman began perceiving that he was being discriminated against by three male faculty members and one female administrator. For example, Mr. Bierman, testified that these individuals were “very nasty” to him and the administrator told him that “[she] did not approve of [their] lifestyle.”

In June, 2002, the school’s grounds crew entered Mr. Savoie and Mr. Bierman’s on-campus housing to repair a water main break outside the home. Because it was emergent, the grounds crew entered the house despite neither Mr. Savoie nor Mr. Bierman being home. When grounds crew entered the house, they discovered certain sexually explicit objects in the basement, such as four pieces of apparatus hanging from the ceiling on chains, videotapes, a computer of the shelf, a tripod without a camera and KY brand lotion. A year later, in June 2003, the new Buildings and Grounds Director began replacing old condensing units. Two employees of the ground crew advised that they were uncomfortable about returning to the home as a result of what they saw the previous year. Ultimately, one of the employees went in the house and reported that he saw similar sexual objects that he had seen the year prior.

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Rutgers University terminated its basketball coach in the wake of ESPN’s broadcast of a videotape showing him physically and verbally abusing players during practice. Public opinion seems nearly unanimous that Mike Rice’s conduct warranted his termination, but the question remains did he create an unlawful hostile work environment under New Jersey Law Against Discrimination?

New Jersey has some of the strictest anti-discrimination and anti-harassment laws in the United States. Most notably, New Jersey’s Law Against Discrimination outlaws unlawful employment discrimination against any person on the basis of protected characteristics, which includes sex, sexual orientation, national origin and others. In 2007, the New Jersey Supreme Court in a case called L.W. v. Toms River Regional Board of Education, 189 N.J. 381 (2007) extended the workplace protections provided under Law Against Discrimination to situations where schools fail to stop severe and pervasive bullying based upon protected characteristics such as sex, sexual orientation and national origin. This means that if a school permits severe and pervasive harassment based upon a protected characteristic, the school can be found liable. Moreover, if the school knows or should know of the existence of unlawful discrimination or harassment, the law requires that the school investigate, remediate and prevent it from happening again.

The video shown by ESPN of several Rutgers basketball practices reveals numerous incidents of Mike Rice pushing, kicking and throwing basketball balls at players. It also depicts Mike Rice yelling gay slurs at players calling them “faggots” and other inappropriate comments. ESPN has also reported that Mike Rice regularly called one of his former players who transferred to Rhode Island, Gilvydas Biruta, names relating to his national origin of Lithuania and gay slurs. Former Rutgers assistant coach, Eric Murdock, who is anticipated to file a lawsuit against Rutgers for unlawful retaliation and wrongful termination, has alleged that Mike Rice would constantly scream at Mr. Biruta by using his national origin and gay slurs. For example, Mr. Murdock says that Mike Rice called Mr. Biruta a “soft-ass Lithuanian bitch,’ ‘soft-ass Lithuanian pussy’ and ‘Lithuanian faggot.'” Mr. Biruta told ESPN that he took offense to Rice’s name calling and insults stating, “If you’re going to criticize me as a basketball player, I’m OK with that,” he said, “but he would criticize me as a person.” Mr. Biruta also told ESPN that the main reason he transferred was because of Mike Rice’s treatment of him.