In the recent decision of Cowher v. Carson & Roberts, 425 N.J. Super. 285 (2012), the New Jersey Appellate Division expanded the reach of the New Jersey Law Against Discrimination (LAD) to include claims based upon the mistaken perception of a protected characteristic.
The LAD, enacted in 1945, recognizes New Jersey’s clear public policy against discrimination in the workplace. The first state anti-discrimination statute in the country, the LAD was designed to ensure that the civil rights guaranteed by the State Constitution were extended to all of its citizens.
The LAD, therefore, makes it unlawful to discriminate against an employee based upon a protected characteristic. The statutorily designated protected characteristics include race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information, liability for military service, mental or physical disability, perceived disability, and AIDS and HIV status.
In Cowher, the Plaintiff, Myron Cowher, brought suit against his employer, Carson & Roberts Site Construction & Engineering Inc., and his supervisors, Gary Merkle, Jay Unangst and Nick Gingerelli, alleging a hostile work environment in violation of the LAD. The Plaintiff claimed that from February 2007 to May 2008, the Defendants subjected him to daily anti-Semantic remarks, despite the fact that he was not Jewish. The Plaintiff reported these remarks to his supervisor, who advised him to simply ignore the comments. The Plaintiff elevated his complaints to the president of the company, who told him to schedule an appointment; however, before he could do so the Plaintiff left his employment due to an unrelated disability. The Plaintiff subsequently filed suit.
The Trial Court granted Summary Judgment, holding that the anti-Semitic remarks were not actionable because New Jersey did not recognize a cause of action premised on a perceived membership in a protected class other than disabled persons.
The decision was reversed by the Appellate Division. The Court held that if the Plaintiff could demonstrate that the discriminatory conduct to which he was subjected would not have occurred but for the perception that he was Jewish, then his claim would be actionable under the LAD. The decision created a new area of LAD claims based upon discrimination towards a perceived characteristic, even if mistaken. While the Court recognized that the Statute expressly provides for a single perceived claim, specifically disability, it could find no reasoned basis to hold that the LAD protects those who are perceived to be members of one class of persons enumerated by the Act, and not those who are perceived to be members of a different class to which the LAD offers its protections in equal measure.
The decision in Cowher is significant, and demands the attention of both employers and insurance carriers alike. The focus of actions under the LAD is no longer upon the employee’s actual protected characteristic, but their perceived characteristic, regardless of whether the perception is correct. The decision opens a new realm of potential claims, exposing employers to additional lawsuits under the LAD, which provides a significant panoply of damages, including both compensatory and punitive.
By Daniel B. McMeen, Esq.