Q:  Can a supervisor’s use of offensive racial slurs on two occasions support a hostile work environment claim under the New Jersey Law Against Discrimination? 

A: In Rios Jr. v. Meda Pharmaceutical, Inc., an employee claimed that his direct supervisor used the term “Sp*c” on two occasions during conversations with him at their workplace. He reported both instances to human resources, but HR was “dismissive” and took no action. The supervisor placed the employee on probation and a performance improvement plan and eventually fired him alleging poor performance. The NJ appellate court affirmed the trial court’s dismissal of the case based on the “absence of evidence that Rios faced adverse employment consequences because of his complaints” about the comments, and on the lack of corroboration for his testimony.

In June 2021, the NJ Supreme Court unanimously reversed and remanded the case for trial. The Court focused on whether the conduct was “sufficiently severe or pervasive” - an inquiry to be “measured by the surrounding circumstances” including the identity of the person who engaged in the alleged misconduct (“the severity of a remark can be ‘exacerbated’ when it is uttered by a supervisor”); the egregiousness of an epithet (“an unambiguously demeaning racial message” or an “ugly, stark and raw” racist slur can be enough to support a claim even if used only once); and where offensive comments are directed to a Hispanic employee, the comments “must be viewed from the perspective of a reasonable Hispanic person in the plaintiff’s position.”  Based on these factors, the Court found that a reasonable Hispanic employee could believe the comments portrayed an attitude of prejudice that injected hostility and abuse into the work environment and significantly altered the conditions of his employment. In other words, a rational factfinder could conclude the alleged racial slurs were sufficiently severe or pervasive from the perspective of an objectively reasonable Hispanic person to create a hostile work environment.

The Rios case highlights the importance employers must place on adopting policies that expressly prohibit all employees from using harassing or discriminatory language in the workplace, ensuring that all employees are trained on such policies and that supervisors are trained on how to respond properly and effectively to reports of harassment and discrimination.

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