Scope of Those Entitled to Bring a New Jersey Discrimination Claim Expanded

The New Jersey Appellate Division in Cowher v. Carson & Roberts recently decided a case that dramatically expands the pool of plaintiffs that may bring a workplace discrimination action under New Jersey’s Law Against Discrimination (LAD). The court held that a man who was not Jewish could pursue a religious discrimination claim under LAD based on anti-Semitic comments.

Myron Cowher sued his employer and three supervisors who repeatedly berated him with anti-Semitic comments for more than a year, which subjected him to a hostile work environment. Cowher contended that the defendants directed disparaging comments including, “If you were a German, we would burn you in an oven,” and other, similar types of derogatory remarks.

Hostile work environment claim based on anti-Semitic slurs

The supervisors contested some (though not all) of the remarks and their frequency while the owner of the company claimed not to have been aware of the anti-Semitic comments. Cowher indicated that he had reported the behavior on multiple occasions to the owner and that the owner had been present on several occasions when the remarks were made. When Cowher complained to the owner of the company, he was told repeatedly to simply ignore the behavior.

The employer and supervisors argued that Cowher had no standing to bring a claim based on the fact that he was not a member of the Jewish faith. The trial court dismissed the case on this basis so Cowher appealed to the New Jersey Appellate Division. On appeal, the court pointed out that to bring a hostile work environment claim based on anti-Semitic comments or conduct, the plaintiff must establish:

• The plaintiff’s Judaism was the cause of the remarks/conduct
• The conduct/remarks were severe and pervasive enough to make a reasonable person of Jewish descent (believe that);
• The plaintiff’s employment conditions were altered such that the workplace is hostile or abusive

Perception of the wrongdoer rules over membership in the protected class

The employer and supervisors contended that Cowher could not satisfy the first element because he was not Jewish. When analyzing this requirement, the court disagreed with the trial court, finding that it was sufficient that the cause of the conduct was the perception that Cowher was Jewish by the wrongdoers.

This decision substantially expands the scope of those who may pursue an employment discrimination claim under LAD, because one need not be within the protected class. It is sufficient that the discrimination is based on the perception of the wrongdoer that the employee has the characteristic upon which the discrimination is based.

Neil H. Deutsch On G+