According to a New Jersey appellate court, it is not discriminatory to suggest for your company to “get rid of the dirty jews.” You can also place a sticker of an Israeli flag on a Jewish colleague’s locker, and then place a sticker of a German flag over it. Throw in a couple of jokes about the size of his nose, how good he is at math, and how he probably makes a lot of money, and you still haven’t discriminated, as long as a judge somewhere, and somehow, considers it good old fashioned teasing, and therefore not sufficient to rise to the requisite legal standard of “severe and pervasive.”
Those of us who practice employment law understand it is difficult to prove discrimination absent compelling direct evidence. Hardly does one encounter a defendant, facing allegations of discrimination, who readily admits to racism, sexism, age bias or other. In my opinion, screening prospective clients’ claims of discrimination is easy. One mentor told me that one out of every dozen or so prospective clients complaining of discrimination is worth considering, let alone pursuing a suit. Another mentor told me all that is needed for a good age discrimination case is evidence that the employer said “get rid of the old fogies.” Apparently not, and that is what makes a three judge panel’s February 2, 2007 decision in Cutler v. Dorn somewhat surprising.
In reversing a 2003 Camden County jury verdict finding that the Haddonfield Police Department was liable under NJLAD based on the circumstances described above, the Appellate Court relied on Heitzman v.Monmouth County, where a co-worker told the plaintiff, among other things, that “If Hitler was alive he would make a lampshade out of you.” The majority in that split decision case affirmed a summary dismissal of Plaintiff Heitzman’s claims. The Court reasoned, if you can call it that: “Although a person of Jewish ancestry undoubtedly would find these comments offensive, a derogatory comment about a person generally does not have the same sting as an ethnic slur directed at a minority group member.” Huh?
The Cutler decision prompted immediate outrage from the National Employment Lawyers Assocation/New Jersey (“NELA”), so much so that the bar group is asking for amicus status to attack the appellate ruling and its reliance on the principles established in Heitzman. In a released position statement, NELA states that the Appellate Decision is bad for all plaintiffs, and goes on to opine that it appears to give Jewish targets of biased comments less cause for recourse than other minority groups. NELA specifically compares alleged Jewish victims of discrimination to alleged African-Americans victims.
The NELA statement boldly asserts that “[T]here is little difference between the Chief of Police constantly asking over a hundred times where the plaintiff’s big Jewish nose is and asking instead where an African-American officer’s big black ass is. Likewise if the placing of a Jewish and then German flag on a locker is a permissible practical joke, then the hanging of a noose of an African-American’s would be no different.” The statement adds “The tests set forth by the Supreme Court for severe and pervasive have been placed in serious peril. If ‘let’s get rid of those dirty Jews,’ a statement that was the very basis of Hitler’s final solution is not severe, then what is?”
The flip side of the coin, obviously accepted by the Court in Cutler, is that joking from both sides evens the playing field, and essentially eliminates discriminatory animus. In that regard, defense counsel argued that Plaintiff Cutler was a “gung-ho participant” in ethnic jokes that were commonplace in the department. Plaintiff Cutler even made fun of a born-again Christian officer’s beliefs, according to evidence.
What I conclude from this is obvious to anyone: that context clearly determines discriminatory behavior in the workplace. In other words, a comment or certain history of conduct could be discriminatory, until or unless it goes both ways. At that point, the underlying discrimination in those instances disappears. What? I doubt that was President Johnson’s vision with the Civil Rights Act.
The law is that discrimination is illegal, and the purpose, which most might say is impossible, is to eliminate, or at least prevent, discrimination. It is difficult to fathom how the Cutler holding makes any progress towards that end by deeming the comments described above as not severe, not pervasive, and therefore not illegal, simply because they were perceived by the Court as joshing.
To me, Cutler stands for a proposition that I was taught was wrong in about the second grade – two wrongs make a right. So, until further review possibly by the Supreme Court, you can make discriminatory comments towards your colleague and/or treat him or her in a discriminatory manner, as long as he or she reciprocates. Great – (sarcasm too strong for print included).