On June 16, 2021, the New Jersey Supreme Court ruled in Rios v. Meda Pharmaceutical, Inc., Tina Cheng-Avery, Glenn Gnirrep, et. al. that a supervisor’s use of an offensive slur – on two occasions – was sufficiently “severe and pervasive” to establish a hostile work environment claim under the New Jersey Law Against Discrimination (“LAD“), survive summary judgment, and proceed to trial.
In Rios, Meda Pharmaceutical, Inc. (“Meda“) hired the plaintiff, Armando Rios, Jr., a Hispanic male, as the Company’s Director of Brand Marketing. In his position, Rios reported directly to Tina Cheng-Avery, the Senior Director of Commercial Operations. Rios alleged that during his employment, on two occasions, his supervisor directed a derogatory term, based on his race/national origin, at him while at work. When questioned on the matter, Rios’s supervisor denied making either of the alleged statements.
Plaintiff further claimed that in accordance with the company’s EEO policy and complaint procedure, he met with Meda’s Director of Human Resources, after each incident and reported his supervisor’s comments. According to plaintiff, the Director of Human Resources was “dismissive” in each instance.
Rios filed suit against Meda as a result of the supervisor’s derogatory language. Defendants moved for summary judgment, and the trial court granted the motion and held that no “rational factfinder” could find that the supervisor’s purported two comments were “sufficiently severe or pervasive to create a hostile work environment” under the LAD, especially considering that the no one else heard the supervisor make the statements – meaning that the statements could not be corroborated. Thus, the court dismissed Rios’s claim and Rios appealed.
The Appellate Division affirmed the trial court’s dismissal on other grounds. The court acknowledged that the supervisor’s offensive slur was “a national origin epithet” that could have satisfied the “severity” requirement necessary to establish a hostile work environment claim under the law – even if stated only twice. The court, however, focused on the lack plaintiff’s lack of evidence and the fact that although the statements were severe, they did not cause the plaintiff to suffer any adverse consequences. Plaintiff then petitioned the New Jersey Supreme Court for cert., and the petition was granted.
At the New Jersey Supreme Court, Plaintiff argued that summary judgment was not appropriate because his supervisor’s use of “multiple racial slurs” towards him was sufficient to support his hostile work environment claim, particularly because the comments were made by his direct supervisor. Defendants countered that there were no facts to establish that the comments at issue were “severe enough” to support Rios’s claims, and that the plaintiff’s burden of proof should not be lowered to a level where any “racial slur” made in the workplace “automatically” creates liability for a hostile work environment. Especially, in a case like this, where the comments were not corroborated.
In a unanimous decision, the New Jersey Supreme Court reversed the judgment of the Appellate Division and remanded the matter for further proceedings. The court held that, given all of the circumstances, a “rational factfinder” could find that the alleged slurs directed to plaintiff were “sufficiently severe” to create a hostile work environment.
The NJ Supreme Court determined that the alleged comments at issue were “highly offensive and demeaning slurs from the perspective of an objectively reasonable Hispanic” and had “no place in a work-setting.” The court reasoned that the slur (which are set out in the opinion, but not int his article) reflected a “history of disdain” towards Latinos and that its “highly insulting nature” was well recognized.
Second, the court found that the supervisor’s position increased the severity of the comments, noting the responsibilities of a supervisor to prevent racial harassment in the workplace, and that when taken together, the comments, from plaintiff’s perspective, could “taint every interaction” between him and his supervisor.
Third, the court noted that plaintiff claimed to have reported the statements to Meda’s Director of Human Resources, who did nothing to address the situation. Thus, the court explained that if plaintiff, as he claimed, had made a report of discrimination, the Company had a chance to correct the problem going forward and failed to do so.
Accordingly, the court found that a “reasonable Hispanic employee” could view the supervisor’s alleged comments as “portray[ing] an attitude of prejudice that inject[ed] hostility and abuse” into the workplace and altered the terms and conditions of plaintiff’s employment. Accordingly, a “rational fact finder” could determine the purported conduct was “sufficiently severe or pervasive” to create a “hostile work environment”, and, as a result, plaintiff’s claim survive summary judgment.
Based on this decision, employers should be aware that derogatory slurs (whether based on race, national origin, or any other protected category), particularly when made by supervisors, may be sufficient to support claims of hostile work environment harassment, even if such comments are only made on a few occasions. Employers should also consider this case when drafting EEO and anti-harassment policies going forward and when conducting training on such issues.