Last updated Feb. 22, 2018.
I’ve often emphasized that the New Jersey Law Against Discrimination (the “LAD”) is a remedial law, aimed at eradicating workplace bias. With that lofty goal in mind, our courts have extended the LAD’s reach to employees who are discriminated or harassed:
- Due to the protected class of a person with whom they associate or have a relationship; and
- Due to the employee’s perceived membership in a protected class.
Let’s examine each of these situations in turn.
Associational Discrimination and Harassment
In today’s world, it’s common for us to have ties with people of different backgrounds and origins. As such, the LAD makes it unlawful for an employer to discriminate against a worker based on the race, sexual orientation, disability, or other protected status of a person with whom the worker associates.
Associational discrimination cases stem from close relationships. Typically, these are relationships defined by romantic intimacy, marriage, or blood. They tend to involve an employee’s spouse/partner/girlfriend or boyfriend; parent; child; or other family member. For instance, if your boss sets you up for termination due to the race of your spouse, you likely have a claim for associational race discrimination. However, if it’s due to the race of your friend, it’s less likely. For your claim to survive, you will need to prove the closeness of your friendship through factors like the length of your relationship and the frequency with which you see, speak to, and support one another.
Associational discrimination cases often take the form of “hostile work environment” harassment cases. For instance, New Jersey courts have found employers guilty of race-based associational harassment where:
- A Caucasian waitress’s co-workers referred to her African-American fiance and their son by the n-word, and made racially derogatory comments about their relationship. Norton v. Karistos Corporation, 2015 WL 8485157 (Dec. 11, 2015);
- A Chinese-American’s manager repeatedly referred to blacks by the n-word, even though she informed the manager that her fiancé was Jamaican-American and that they had a biracial son together. Lin v. Dane Construction Co., 126 Fair Empl. Prac. Cas. (BNA) 974 (March 17, 2015).
As the Lin case shows, associational harassment may be actionable and illegal even when it is not directed specifically at the person with whom the employee has a close relationship. In Lin, it was enough that the manager’s racist comments were directed generally at the protected class (blacks) to which the employee’s fiancé and child belonged.
Discrimination and Harassment Based Upon Perceived Status
The LAD also protects employees from discrimination and harassment based upon their perceived membership in a protected class — even if that perception is totally mistaken. This makes it unlawful for employers to discriminate against or harass a worker due to erroneous beliefs and assumptions about the worker’s sexual orientation, race, or other protected status.
Workplace discrimination and harassment based upon perceived status commonly centers upon an employee’s perceived disability, especially when the employee has returned to work from medical leave for an illness or injury. Although the employee’s doctor may have granted a clearance to work without restriction, employers may terminate the employee out of the belief that he or she is still unable to perform the essential functions of the job. For instance:
- In a pending New Jersey lawsuit, a hospital nurse suffered work-related injuries to her shoulders (her job involved lifting and supporting patients). Her doctor certified that she could return to work without restrictions. However, shortly after she resumed work, the hospital terminated her, arguing that she had failed to provide sufficient proof that she could perform her job. Grande v. St. Clare’s Health System, 2017 WL 2963024 (July 12, 2017).
- A marketing manager for a telecommunications company took a medical leave of absence to treat her ovarian cancer. Her physicians informed her that her cancer was in remission and she returned to work. After she was terminated, an appellate court allowed her perceived disability discrimination case to proceed to trial, in part because the employee’s boss testified that her impression was that the employee would have been working harder if she had not had cancer. Myers v. AT&T, 380 N.J. 443 (App. Div. 2005).
Perceived disability discrimination cases often turn into a battle of the experts, with both plaintiff and defendant relying upon competing physicians to certify or challenge the plaintiff’s ability to work.
Standard of Review for Discrimination Based on Perceived Status
It’s important to note that, if you are a victim of workplace discrimination based upon perceived membership in a protected class, the Law Against Discrimination treats your case as if you are actually a member of that class. The following case illustrates:
A truck driver was erroneously perceived by his supervisors as being Jewish. As a result, he was subject to repeated anti-Semitic slurs until he complained of the harassment, at which point he was fired. He sued his employer for hostile work environment discrimination, and the employer fought the suit by arguing that the driver was not Jewish.
The court, however, recognized that the LAD prohibits discrimination based upon perceived status, and ruled that the driver could prevail if he demonstrated that his employer’s conduct was “severe or pervasive enough to make a reasonable Jew believe” that the working environment was hostile or abusive. Cowher v. Carson & Roberts, 425 N.J. Super. 285 (App. Div. 2012).
Contact a New Jersey Employment Law Attorney
If you’ve been subjected to discrimination or harassment based upon a mistaken perception about your sexual orientation, race, religion, or other status, call our offices today for a free consultation.