In the case of Cowher vs Carson and Roberts, the Appellate Division recently ruled in our client’s favor in holding that even though Mr. Cowher was not Jewish, he is protected under the Law Against Discrimination.
He was continuously taunted and insulted by his supervisors with anti-semitic insults, on the mistaken belief that he was Jewish. The NJ Law Journal article explains the case more fully below.
N.J. Bias Law Covers Claim Over Anti-Semitic Slurs Against Non-Jew
by Michael Booth
New Jersey Law Journal
April 18, 2012
A worker can pursue his bias suit against supervisors for directing anti-Semitic slurs toward him, even though they incorrectly thought he was Jewish, a New Jersey appeals court held on Wednesday.
If a plaintiff “can demonstrate that the discrimination that he claims to have experienced would not have occurred but for the perception that he was Jewish, his claim is covered” by the Law Against Discrimination, the court said in Cowher v. Carson & Roberts, A-4014-10.
The court said the defendants were motivated by their belief that Cowher was Jewish, and thus engaged in “real” discrimination and harassment the statute is designed to eliminate.
“That their target happened not to be Jewish should not serve to excuse their conduct,” the court continued.
Myron Cowher was a truck driver for Carson & Roberts Site Construction & Engineering Inc. in Lafayette between April 2006 and May 2008. In February 2007, he alleges, supervisors Jay Unangst and Nick Gingerelli began making anti-Semitic jokes and derogatory comments directed toward him.
They first denied the allegations, but Cowher then produced videotapes with comments such as “Jew Bag,” “Fuck you Hebrew,” “Jew Bastard,” “Where are [you] going, Jew,” “If you were a German, we would burn you in the oven,” and “Only a Jew would argue over his hours.”
In May 2008, Cowher met with company president Dan Carson and was told to discuss the matter with another supervisor, Gary Merkle, who had previously told Unangst and Gingerelli that the comments were inappropriate.
e=”font-family: tahoma, arial, helvetica, sans-serif; font-size: 8pt;”>Cowher claimed he already had spoken with Merkle on several occasions and that Merkle told him to ignore the comments and that they would stop.
Alleging that the work environment left him disabled, Cowher quit his job later that month.
Unangst and Gingerelli now admit to making some of the comments, but claim that they were made as part of a “locker-room” environment and that they did not believe Cowher was Jewish.
They said the comments originated when Cowher and his wife took a cut on the proceeds of a Super Bowl pool, conforming to the stereotype of Jews being avaricious. Cowher says the comments stem from his request for a leave of absence to attend a bris.
Sussex County Superior Court Judge Edward Gannon dismissed the suit on summary judgment, citing Taylor v. Metzger, 152 N.J. 490 (1998).
Taylor held that a Jewish plaintiff alleging an anti-Semitic hostile work environment in violation of the LAD must demonstrate that the conduct would not have occurred but for the fact that he or she was Jewish.
The plaintiff also must show that the conduct was severe enough to make a reasonable Jewish person believe the work conditions became hostile or abusive.
Those tests were first laid out in a broader sense in Lehmann v. Toys ‘R’ Us, 132 N.J. 587 (1993).
Gannon agreed with the defendants that Cowher failed the first prong of the test because he is not Jewish and that the allegation that he was perceived to be Jewish was insufficient.
But Appellate Division Judge Edith Payne, joined by Susan Reisner and Marie Simonelli, said, “We regard the court’s interpretation of New Jersey law to have been mistaken.”
Payne cited a string of cases, beginning with Andersen v. Exxon, 89 N.J. 483 (1982), in which courts have held that discrimination laws can be used when defendants wrongly perceive plaintiffs to be disabled.
In Anderson, Exxon was found liable after it wrongly declined to hire the plaintiff as a truck driver, mistakenly believing he was disabled because he had undergone spinal fusion surgery.
Payne also cited Poff v. Caro, 228 N.J. Super. 370 (Law Div. 1987). There, a judge found a landlord liable for discrimination after he refused to rent an apartment to three gay men because he feared they would contract AIDS. The Poff court found discrimination based on a perception of a handicap to be within the protection of the LAD.
Payne said there is “no reasoned basis to hold that the LAD protects those who are perceived to be members of one class of persons enumerated by the Act and does not protect those who are perceived to be members of a different class, as to which the LAD offers its protections in equal measure.”
Citing Cutler v. Dorn, 196 N.J. 419 (2008), Payne said the focus should be on the harassing conduct itself.
The issue is the effect of the defendants’ derogatory comments “on a reasonable Jew, rather than on a reasonable person of plaintiff’s actual background,” she said.
“We recognize that anti-Semitic comments are likely to affect a reasonable Jew more profoundly than a reasonable non-Jew, although we do not suggest that any reasonable person should tolerate comments of a nature as offensive as those expressed by Unangst and Gingerelli,” Payne said.
“But the LAD is ‘remedial legislation’ the purpose of which ‘is to change existing standards of conduct.'” she said, quoting Lehmann.
The panel also rejected arguments that the company should not be held liable because it had anti-discrimination and anti-harassment policies in place, and that Unangst and Gingerelli could not be held individually liable.
The judges did say that Gannon correctly dismissed claims against Merkle because he did not engage in the discriminating conduct and at least pointed out to Unangst and Gingerelli that their conduct was improper.
Cowher’s lawyer, Budd Lake solo Robert Scirocco, says the ruling breaks new ground.
“The defendants can’t hide behind the fact that the employee was not Jewish to escape liability,” he says, “or that he could not be hurt by anti-Semitic remarks.”
Scirocco also says the ruling could apply to anyone who is discriminated against based on the wrong impression that he or she belongs to a protected class — such as being a Muslim or being gay.
The defendants are represented by Frederick Polak and Robert Goodsell of Roseland’s Post, Polak, Goodsell, MacNeill & Strauchler. Polak says only that the ruling is being reviewed.