Cowher v. Carson & Roberts
40 A.3d 1171, 425 N.J. Super. 285 (2012)
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Rule of Law:
The New Jersey Law Against Discrimination (LAD) prohibits hostile work environment harassment based on a harasser's incorrect perception that the employee is a member of a protected class.
Facts:
- Myron Cowher was employed as a truck driver by Carson & Roberts from April 2006 until May 2008.
- From approximately January 2007 to May 2008, Cowher's supervisors, Jay Unangst and Nick Gingerelli, directed daily anti-Semitic slurs at him because they perceived him to be Jewish, though he was not.
- The slurs included comments such as "Jew Bag," "Fuck[] you Hebrew," and "If you were a German, we would burn you in the oven."
- Unangst set the ringtone for calls from Cowher on his cell phone to the Hebrew folk song "Hava Nagila."
- Cowher repeatedly told Unangst and Gingerelli to stop their comments, but the harassment continued and worsened.
- Cowher complained multiple times to another supervisor, Gary Merkle, who advised him to "just laugh it off" or "ignore it."
- The harassment continued until Cowher left his employment in May 2008 for unrelated disability reasons.
Procedural Posture:
- Plaintiff Myron Cowher filed a complaint against his employer, Carson & Roberts, and three supervisors in the state trial court.
- The complaint alleged a hostile work environment in violation of the New Jersey Law Against Discrimination (LAD).
- Defendants moved for summary judgment, arguing the LAD did not protect against harassment based on a perceived, but incorrect, religious identity.
- The trial court granted summary judgment for all defendants, dismissing Cowher's case.
- Cowher, as appellant, appealed the trial court's order to the Superior Court of New Jersey, Appellate Division, the state's intermediate appellate court.
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Issue:
Does the New Jersey Law Against Discrimination (LAD) prohibit hostile work environment harassment against an employee based on the harassers' incorrect perception that the employee is a member of a protected religious group?
Opinions:
Majority - Payne, P.J.A.D.
Yes. The New Jersey Law Against Discrimination (LAD) prohibits hostile work environment harassment based on a perception that an employee is a member of a protected group, even if that perception is incorrect. The court reasoned that the purpose of the LAD is to eliminate discrimination, and prejudice is the 'fountainhead of discrimination' regardless of whether the victim's perceived characteristic is real or non-existent. Extending the logic from prior cases involving perceived disability, the court found no reasoned basis to treat perceived religious affiliation differently from any other protected class under the LAD. The focus of the inquiry is on the harasser's discriminatory animus and conduct, not the victim's actual identity. Therefore, that the harassers' target was not actually Jewish does not excuse their conduct. The court also held that the severity of such harassment should be evaluated from the perspective of a reasonable person of the perceived protected class (here, a reasonable Jewish person).
Analysis:
This decision significantly clarifies that the protections of the New Jersey Law Against Discrimination (LAD) extend to claims of 'perceived as' discrimination across all protected categories, not just disability. By confirming this principle, the court reinforces that the focus of anti-discrimination law is on the perpetrator's discriminatory motive and the nature of the harassing conduct, rather than the victim's actual status. The ruling establishes an important precedent for evaluating the severity of harassment in such cases, holding that the proper standard is that of a reasonable person from the perceived protected group, which ensures that the gravity of the discriminatory conduct is fully assessed. This will likely make it easier for plaintiffs who are victims of mistaken identity-based harassment to bring and sustain hostile work environment claims.
