A Hostile Work Environment is Unlawful – Even If It Occurs by Mistake

By Eric B. Meyer

The Americans with Disabilities Act explicitly forbids discrimination against those who are actually disabled or “regarded as” disabled. As a New Jersey court once recognized, “Distinguishing between actual handicaps and perceived handicaps makes no sense.”

Indeed, “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be . . . non-existent.”

Does the same maxim apply to workplace discrimination — a barrage of anti-semitic comments — directed at employee whom the harassers believe is Jewish, but really isn’t?

Is that unlawful?Behind the case

Joe Palazzolo, writing at The Wall Street Journal’s Law Blog, highlighted Wednesday’s decision in Cowher v. Carson & Roberts from the New Jersey Superior Court, Appellate Division. He succinctly summarized the facts and procedural history:

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The plaintiff, truck driver Myron Cowher, sued his former employer Carson & Roberts Site Construction & Engineering Inc. and his former supervisors under the New Jersey Law Against Discrimination. A state trial judge threw the case out, even though two of his supervisors at the company admitted to the slurs.

The trial court held that being a perceived membership in a protected group — other than disabled persons — wasn’t a basis to file a lawsuit under the state’s anti-discrimination law. The court also found that Cowher didn’t produce any evidence to show that his supervisors, Jay Unangst and Nick Gingerelli, actually believed he was a Jew.”

Discrimination by any other name

The Appellate Division, in a published opinion, reversed. Drawing from its prior decision in Heitzman v. Monmouth County, a case in which a person of Jewish ancestry who was not a practicing Jew, claimed that a series of anti-Semitic comments directed at him created a hostile work environment, the Appellate Division recognized that a perceived characteristic that, if genuine, would qualify a person for discrimination protections need not be limited to a disability.

The Appellate Divison, therefore, was “satisfied that there is no reasoned basis to hold that the [New Jersey Law Against Discrimination] protects those who are perceived to be members of one class of persons enumerated by the [NJLAD] and does not protect those who are perceived to be members of a different class…Thus, if plaintiff can demonstrate that the discrimination that he claims to have experienced would not have occurred but for the perception that he was Jewish, his claim is covered…”

So, there you have it. Mistaken discrimination is still unlawful discrimination.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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