By Francine Foner, Esq., and Ty Hyderally, Esq
When do racist or sexist remarks in the workplace amount to a hostile work environment under the New Jersey Law Against Discrimination, NJ.S.A. § 10:5-1, et seq. (“NJLAD”) and 42 U.S.C. § 1981? This issue was among those recently considered by the United States District Court for the District of New Jersey when it ruled on a motion for summary judgment regarding state and federal race- and sex- based hostile work environment claims brought by Lakewood Township employee Elizabeth Williams. Ms. Williams brought suit against the Township and her former supervisors. Elizabeth Williams v. Township of Lakewood, 2020 U.S. Dist. LEXIS 231137. Ms. Williams is a Latin-American female, of Dominican heritage, who worked for the Township in clerical positions, from May 6, 2002, until her termination on March 10, 2017. Ms. Williams alleged, among several other claims, that the Township and three of her former supervisors violated Section 1981 and the NJLAD via a pattern and practice of repeated racist and sexist comments and disparate treatment of Latina employees.
The Court dismissed Ms. Williams’ Section 1981 claim against the Township both because an individual does not have a cause of action against a state or municipality under Section 1981 and because Ms. Williams did not “allege that the discrimination [s]he suffered was pursuant to an official policy or custom of the City.” Id. at *9. However, the Court held that Ms. Williams could maintain her Section 1981 claim against her former supervisor, Robert DeSimone, because Ms. Williams raised a genuine issue of material fact regarding DeSimone’s having “engaged in the pattern and practice of intentional discrimination by his repeated sexually and racially offensive comments, and that his conduct created a hostile work environment.” Id. at *24-25.
The specific comments made by DeSimone which Ms. Williams alleged created a hostile work environment based upon her sex and race were that “Lakewood might hire a ‘young blonde’ with ‘nice boobs’” when Ms. Williams was on vacation, and that DeSimone “questioned whether she [Ms. Williams] would be allowed back into the United States from the Dominican Republic.” Id. at *25. Ms. Williams further alleged that DeSimone “made such comments ‘a lot of times . . . Every time that I would go on vacation, he would find that opportunity to say that.’” Id. Ms. Williams also claimed that DeSimone made numerous inappropriate comments, such as: “How come you can’t find a man” when she went to the Dominican Republic”; “When she goes on vacation to her Dominican Republic, they will not let her back into the US”; and “Are you sure you’re a citizen? You sure you got your papers?” Id. at *13.
DeSimone argued that that Ms. Williams’ statements were self-serving and that even if such comments had been made, they did not give rise to a hostile work environment claim, because such comments were not “severe or pervasive” and that there was no proof that they “‘detrimentally affected [Ms. Williams] or would detrimentally affect a reasonable person.’” Id. at *25. However, the Court disagreed, finding that DeSimone’s comments met the elements of a prima facie case of a race-based hostile work environment claim under Section 1981. In order to decide whether the racially offensive comments rose to the level of a hostile work environment, the Court first outlined the elements which a plaintiff must show to establish a prima facie claim of hostile work environment under 42 U.S.C. § 1981: “1) the employee suffered intentional discrimination because of his/her [race], 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability [meaning the employer is responsible].” Id. at *25-26.
In addition, the Court observed that, in the Third Circuit, even a single instance of harassment can satisfy the severe or pervasive element, although “’offhanded comments, and isolated incidents (unless extremely serious)’ are not sufficient to sustain a hostile work environment claim.” Id. at 26. The Court further acknowledged that the conduct must be “extreme to amount to a change in the terms and conditions of employment” and that the court must review “the totality of the circumstances and factors such as ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Id. Under this standard, the Court concluded that Ms. Williams established a prima facie case of race based hostile work environment under Section 1981 against DeSimone. In reaching this conclusion the Court found that the comments were not offhanded or isolated incidents. Rather, the Court opined that “DeSimone repeatedly targeted [Ms. Williams] with inappropriateremarks that would have been inapplicable if she were white or non-Latina” and that “[a] reasonable person in [Ms. Williams’] shoes would be detrimentally affected by hearing such comments on a regular basis.” Id. at 26-27. The Court further reasoned that “[t]aken together, a reasonable factfinder could conclude that DeSimone’s inappropriate comments were sufficiently pervasive or extreme to create a hostile work environment.” Id. at 27.
The Court explained that since Ms. Williams established a prima facie case of a race-based hostile work environment claim against DeSimone under Section 1981, the burden then shifted to DeSimone to provide a legitimate nondiscriminatory reason for Ms. Williams’ termination. However, DeSimone failed to provide any nondiscriminatory or race-neutral explanation for what the Court opined were “facially inappropriate and offensive” comments. In addition, the Court rejected DeSimone’s contention that his comments were not extreme or pervasive, because Ms. Williams alleged that they “occurred repeatedly over the course of several years.” Id. at *29. Therefore, the Court denied DeSimone’s motion for summary judgment dismissing Ms. Williams’ Section 1981 hostile work environment claim against him.
With respect to Ms. Williams’ race- and sex-based hostile work environment claims against the Township and Ms. Williams’ former supervisors under the NJLAD, the Court found that Ms. Williams had established prima facie cases of race- and sex-based hostile work environment claims under the NJLAD against the Township, as well as a claim against DeSimone for his having aided and abetted the Township’s NJLAD violations.
The Court first observed that the elements of a prima facie claim of hostile work environment under the NJLAD are that: “the complained-of conduct (1) would not have occurred but for the employee’s protected status,and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive.” Id. at 52-53. Ms. Williams alleged as a basis for her NJLAD hostile work environment claim against the Township the offensive comments made by DeSimone, as well as “continuous negative treatment by her co-workers and supervisors that was rooted in anti- Latina racism, denial of the accommodations, training, and tools needed to perform her work and harsh treatment directed at Latina employees, including harassment for speaking Spanish or requesting a bathroombreak.” Based upon the totality of the evidence, the Court held that a reasonable factfinder could find that Ms. Williams had established a prima facie case of a hostile work environment claim against the Township under the NJLAD. Id. at 54. In addition, the Court found that Ms. Williams raised genuine issues of material fact regarding the Township’s claimed legitimate reason for Ms. Williams’ termination and regarding several examples of anti-Latina discrimination. Id. at 43-45.
Further, the Court found that, under the “continuing violation doctrine,” Ms. Williams’ NJLAD claims of hostile work environment were not barred by the NJLAD’s two-year statute of limitations, even though some of the harassing conduct occurred more than two years before Ms. Williams filed her complaint. Id. at 43. The continuing violation doctrine permits an individual who experiences a “’continual, cumulative pattern of tortious conduct,’” to have the statute of limitations measured from when the wrongful action ceases. Id. at 35-36. The Court agreed that many of Ms. Williams’ allegations met the standard for a “‘continuing violation,’ such as harassment and unequal treatment of Latinas.” Id. at 43.
Further, the Court found that Ms. Williams had established a prima facie case that DeSimone aided and abetted a hostile work environment under the NJLAD. The Court concluded that Ms. Williams satisfied the elements of a claim of aiding and abetting, by showing that DeSimone engaged in purposeful and repeated conduct that created a hostile work environment for Plaintiff and other employees within her protected class. The Court further held that DeSimone was undoubtedly aware that his comments were inappropriate and offensive, and he could be held liable for aiding and abetting his own conduct as William’s supervisor. Id. at *61. Therefore, the Court denied summary judgment as to Ms. Williams’ claim that DeSimone aided and abetted a hostile work environment.
The Court’s decision here validates the experiences of too many Latinas in too many work environments. The Court acknowledged that Latinas are not second-class citizens, and to treat them as such is illegal discrimination.
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 The Court observed that since Section 1981 applies to race discrimination only, the court’s analysis of the Section 1981 hostile work environment claim would be based upon De Simone’s racially offensive comments.
 Williams also succeeded in defeating summary judgment on her claims against the Township for intentional discrimination under the NJLAD and for whistleblower retaliation under the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.S.A. § 34:19-1, et seq.