Cutler v. Dorn, A-51-07 (Sup. Ct., July 31, 2008) — In this much anticipated case, the Supreme Court for the first time addressed the test for establishing a case of hostile work environment based upon religion and ancestry. The Court held that the previouslydeveloped standard set forth in Lehmann v. Toys R Us for evaluating sexual harassment claims applies to hostile work environment claims generally, and a claimant asserting harassment based on religion and ancestry bears no heavier burden than any other claimant.

The Appellate Division had previously overturned a jury verdict for the Plaintiff police officer, which had found that the officer had been subjected to a hostile work environment based on his religion. The appeals court determined that the conduct of which the employee complained, repeated derogatory remarks and religious epithets regarding his Jewish faith, were not “severe or pervasive.” (Incidentally, this prompted the Legislature to introduce a bill in January 2008, which would have amended the definition of “hostile environment” and “abusive conduct” to include such repeated actions.)

Reasserting the State’s strong interest in maintaining workplaces free from discrimination, the Supreme Court emphasized the “severe or pervasive” analysis requires examination of the totality of the circumstances, and consideration of the “cumulative effect” of what might otherwise be discrete acts of discrimination. The Court disavowed any contrary interpretation of the Appellate Division’s decision in Heitzman v. Monmouth Cty., and admonished that all New Jersey courts must recognize that religious based harassment is just as offensive, and equally actionable, as other forms of harassment outlawed by the LAD.