In that case, Atron Castleberry and John Brown were African-American men. They obtained jobs through a staffing agency, STI Group, which employed and placed them with Chesapeake Energy Corporation, an oil and gas company. Shortly after they were hired, the only other African-American on their crew was fired. They alleged that on several occasions someone wrote “don’t be black on the right of way” on their timesheets. They also alleged that they were only allowed to clean around pipelines despite their experience, when other employees faced no such restrictions, including white employees with less experience. They also claimed that while they were working on a fence-removal project their supervisor told them that they would be fired if they “n…..r-rigged” the fence. After the last incident, which seven co-workers confirmed, they reported the incident. Two weeks later they were fired.
They filed suit in the United States District Court under federal employment law. The district judge dismissed their case before any evidence was exchanged in discovery because he believed that the employees had not alleged harassment which created a hostile work environment which was both “severe” and “pervasive.” The employees appealed to the United States of America for the Third Circuit, which hears appeals of New Jersey Federal cases. The Third Circuit reversed.
The Third Circuit held that an employee alleging harassment under federal employment law need only allege (and then at later stages of the case after discovery prove) that the hostile work environment created by the harassment was either “severe” or “pervasive.” Thus, conduct can be sufficiently severe to sustain an discriminatory harassment suit under federal law, or it can be regular enough to be pervasive, but it does not have to be both. The practical impact of this is that any New Jersey employee suing for discriminatory harassment under federal law need only prove that the harassment was severe or pervasive, not both.
This has been the standard for almost two decades under New Jersey’s state anti-discrimination law, the Law Against Discrimination, commonly called the “LAD.” In the 1998 case of Taylor v. Metzger, the New Jersey Supreme Court had earlier adopted the “severe” or “pervasive” standard. In that case, Taylor, the employee, was a Burlington County Sheriff’s Officer. One morning when Taylor greeted the Burlington County Sherriff, Metzger, he turned to his undersheriff and said, in front of Taylor, “There’s the junglebunny.” The standard under the LAD had previously been that harassment had to be both severe and pervasive in order to be actionable. However, the New Jersey Supreme held that an employee need only prove that harassment created a severe or pervasive hostile work environment. Indeed, even a single word could be severe enough, or as the Court put it “a single utterance of an epithet can, under particular circumstances, create a hostile work environment,” and “junglebunny” was a sufficiently inflammatory racial epithet.
The takeaway is that harassment which is either severe or pervasive is enough to create a hostile work environment under New Jersey employment law and federal employment law.
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