The New Jersey courts recently revisited the question whether offensive language in the workplace violates the Law Against Discrimination. In Taylor v. Metzger, the best-known example of such conduct, the Supreme Court held that a single instance of referring to an African-American worker as a "jungle bunny" created a hostile work environment.
Now, in Cutler v. Dorn, the Appellate Division has held that referring to a co-worker as "a dirty Jew" does not rise to the same level of severity as the "jungle bunny" comment, and does not necessarily give rise to a claim under the LAD. The court's opinion, however, makes clear that the context in which the comment was made was critical to its decision.
The Haddonfield Police Department is relatively small and had been populated by an "in-group" of officers and some supervisors who delighted in playing pranks, teasing, ribbing and "breaking each others chops." Plaintiff participated to at least some extent. Humor files, containing offensive material, were well known and made available for perusal for those who wished to indulge, including plaintiff.
Against this backdrop, Shreve, a co-worker whom plaintiff did not particularly like, made the "dirty Jews" comment in plaintiff's presence. While the comment was undoubtedly disturbing, it was isolated, not specifically directed at plaintiff, and not made by a supervisor.
The plaintiff received a scheduled promotion and did not otherwise suffer any adverse employment action.
In considering all of the circumstances, the court held that "the comments and pranks were sporadic and not sufficiently severe or pervasive to create a hostile work environment under the LAD." In fact, even though the jury had found for the plaintiff at trial, the court held that the trial judge should have granted defendants' motion to dismiss the complaint.
Employers should be wary about this holding. It certainly does not give carte blanche permission to use derogatory language in the workplace. All complaints received from employees about offensive conduct should continue to be taken seriously and investigated promptly. The Cutler opinion notwithstanding, doing anything less is playing with fire.