In New Jersey, Just Overhearing Discriminatory Comments May be Cause For a Claim
The New Jersey Division on Civil Rights (“DCR”) issued a probable cause determination, finding sufficient evidence to support an employee’s claim that she was subjected to a hostile work environment based on comments she heard, which were directed at third parties, and that unlawful racial comments prompted her constructive discharge. In Lin v. Dane Construction, the employee, an Asian-American female with a Jamaican fiancée and a bi-racial son, filed a complaint against her employer after she quit, alleging a hostile work environment based on race. The employer’s owner, who knew that her fiancée was Jamaican and her son was bi-racial, used numerous anti-Black epithets directed at third-parties, which the employee overheard. When the employee confronted the owner, he told her that his comments had nothing to do with her son. Eventually, the employee resigned after an incident in which the owner twice used a derogatory comment regarding a Jamaican client.
The Director of the DCR intervened as a complainant and conducted an investigation and fact-finding conference. The investigation determined that there was sufficient evidence to support a reasonable suspicion that the company’s owner used racial slurs in the employee’s presence. The investigation also found that the employee was constructively discharged, that is, a reasonable person in the employee’s position would find the conditions to which she was subjected to be intolerable.
Practice Pointer: Although it is impossible for employers to prevent all discriminatory comments at work, based on this case, employers risk liability if their employees or managers use derogatory terms within an earshot of other employees, even when such terms are not directed at the employees. Employers should: (1) review their workplace harassment policy to ensure it is current and distribute/redistribute it to all employees at least annually, (2) audit the complaint procedure to ensure all complaints are taken seriously and investigated promptly, (3) impose discipline not only on those who harass or make inappropriate comments to a specific person(s), but also discipline those who use any inappropriate/discriminatory language at work, and (4) ensure that employees, particularly all supervisors, receive training to understand that discriminatory language directed at third parties should never be used in the workplace.