Labor and Employment

HOSTILE WORK ENVIRONMENT: A SINGLE COMMENT MAY BE ENOUGH

By: M. Karen Thompson


In New Jersey state courts, a trend is developing which finds that a single remark can be severe enough to demonstrate a hostile work environment under the New Jersey Law Against Discrimination ("LAD"), and to permit a plaintiff to have a jury decide his or her claims.

In Lehman v. Toys ‘R’ Us, the New Jersey Supreme Court formulated the standard to be applied in cases alleging a hostile work environment. The Court adopted a disjunctive, either/or, test: whether a reasonable person would consider the challenged conduct "sufficiently severe or pervasive" to alter the conditions of employment and create an intimidating, hostile or offensive environment. Lehman predicted that "it will be a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable [person situated as the plaintiff], make the working environment hostile." Such cases since Lehman are proving to be neither rare nor extreme.

Although these cases generally recognize that the LAD is not intended to be a "general civility code," and that offensive, crude or inappropriate comments are not automatically evidence of discrimination, New Jersey appellate courts are routinely reversing trial judges who dismiss cases in which a single remark forms the basis of the plaintiff’s claim. In their view, it should be up to the jury, as the factfinders, to determine whether an isolated remark is sufficiently severe to render the workplace hostile and to impose liability under the LAD.

In each of the reported decisions, the challenged remarks were directed specifically to the plaintiff by his or her supervisor, a fact which the courts found compelling. Because a supervisor plays a unique role in shaping the work environment and preventing and rectifying harassment in the workplace, courts are more likely to permit a plaintiff to proceed with his or her claim when a supervisor has uttered the offensive remark, provided the remark is severe enough. This is especially true if the remark is uttered in the presence of third parties. (In the single case in which a series of remarks were deemed insufficiently offensive to allow plaintiff to proceed to a jury trial, the most egregious remark had been made by a coworker, rather than a supervisor, and no one overheard it.)

In addition to exposing employers to liability under the LAD, state courts have held that isolated comments in the workplace, if deemed sufficiently extreme and outrageous, may also represent the tort of intentional infliction of emotional distress. Because the employer-employee relationship is regarded as a special relationship, a single event in the workplace may be enough to impose liability, whereas the same slur spoken by a stranger on the street might not.

Thus, the New Jersey appellate courts have determined that a jury could reasonably find that the following types of comments may be actionable as representative of a hostile work environment: a single utterance of the racial epithet "jungle bunny" directed to African-American plaintiff by her Causcasian supervisor in presence of co-workers; supervisor’s derogatory comments about plaintiff’s diabetic condition; sexually and racially explicit comment directed to plaintiff by one of employer’s highest ranking supervisors; African-American supervisor’s reference to Caucasian plaintiff as a "white boy" in presence of customer.

These cases demonstrate the need to investigate all workers’ complaints about offensive comments in the workplace, even if only a single comment is involved. This is especially true if the comment is made by a supervisor, or in the presence of third parties. The employer’s anti-harassment policy should make clear that comments which may be offensive to others will not be tolerated.

April 2002