Recently, the New Jersey Superior Court Appellate Division reversed and remanded a trial court decision that dismissed a transgender man’s complaint of public accommodation discrimination against a police department in violation of the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5–1 to –49. The case, Holmes v. Jersey City Police Dep’t, No. A-1634-15T3, 2017 WL 1507189 (N.J. Super. Ct. App. Div. Apr. 27, 2017), was originally brought in the Hudson County trial court by Shakeem Malik Holmes, a transgender man, who asserted a “hostile environment” claim, alleging that while under arrest at the Jersey City Police Department, several police officers demeaned, insulted, and threatened him about his transgender status.
The trial court granted summary judgment for the defendant police department, relying primarily on Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999) to conclude that the remarks made by the police officers, although rude and insensitive, did not rise to the level of severe or pervasive LAD violations. In Heitzman, the Appellate Division upheld the dismissal of a hostile work environment suit, maintaining that while physically threatening or humiliating remarks directed at a victim could create a hostile work environment, the anti-Semitic comments made to the plaintiff by his co-workers were not sufficiently severe or pervasive to create such hostile work environment. Relying on this decision, the trial court in Holmes found that the rude and insensitive comments made to plaintiff by the police officers were not sufficiently severe or pervasive to create a hostile environment.
Subsequently, Holmes appealed the trial court decision to the Appellate Division, which reviewed the decision de novo and found that plaintiff’s allegations, if true, could indeed support a hostile environment claim. Coming to this conclusion, the appeals court considered that: (1) plaintiff, as an arrestee temporarily incarcerated in the police station, was in a uniquely vulnerable position; (2) the individuals making the hostile comments were police officers, who wield tremendous power over arrestees (as opposed to a case relied on by defendants involving school children directing harassment at a classmate); and (3) the comments included a physical threat. Accordingly, the appeals court found that under all the circumstances, a jury could find that the conduct was sufficiently severe and that a reasonable transgender person in plaintiff’s position would find the environment to be hostile, threatening, and demeaning.
Moreover, the appeals court found the trial court’s reliance on Heitzman misplaced for several reasons. First, as the appeals court stated, Heitzman applied a higher proof standard to LAD cases that specifically involved religious, as opposed to racial or gender harassment. As such, the appeals court explained that the trial judge likely applied the wrong standard to this transgender harassment case. Second, the appeals court also pointed out that Heitzman was overruled, in pertinent part, by a subsequent New Jersey Supreme Court case (Cutler v. Dorn, 196 N.J. 419 (2008)). Additionally, the appeals court recognized that the prohibition of discrimination in relation to public accommodation is functionally distinct from the ban on employment discrimination and that in the context of public accommodation discrimination, hostile comments that might not suffice to create a hostile environment in the employment context may nonetheless violate the LAD. Consequently, the appeals court reversed the trial court’s decision and remanded the case for a new trial on the hostile environment claim.
By: Jonathan L. Triantos, Esquire
Associate at Brown & Connery, LLP