One Strike and You’re Out-Single Racial Slur Can Create Hostile Work Environment

Everyone knows, or hopefully should know, that Title VII of the Civil Rights Act of 1964 protects employees from encountering a hostile work environment due to their race. What many may not know is that there is another federal law that also prohibits racial discrimination in the form of hostile work environment. That statute, §1981 of the Civil Rights Act of 1866, was the subject of a significant recent decision from the Third Circuit Court of Appeals that addressed what legal elements must be established in order to prove a hostile work environment claim under § 1981. Employers are wise to heed the edicts of this decision because it has expanded the potential situations where a racially hostile work environment can be established under this law.

In Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017), two African-American male employees worked as general laborers for the defendant company. They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n….r-rigged” the fence. This incident was confirmed by other coworkers and reported thereafter by the employees to a superior. Two weeks later, the two African-American employees were fired without explanation, but were subsequently rehired, only to be fired again, this time because of a “lack of work.”

The African-American employees subsequently filed suit alleging harassment, discrimination, and retaliation in violation of § 1981. The trial court dismissed the employees’ harassment claim because it determined that the facts as pled in the plaintiffs’ complaint did not support a finding that the harassment was “pervasive and regular.” This ruling was not at all surprising because ordinarily in order to prove a hostile work environment under current law, more than a single incident is required to give rise to a potential legal claim. That is how most courts, including in this judicial circuit, have read the requirement of “severe and pervasive.”

An appeal was subsequently taken to the Third Circuit Court of Appeals. The Court determined that it was error for the complaint to have been dismissed. Clarifying its past decisions in this area, the Court held that, in some circumstances, a single incident can be severe enough to contaminate a workplace environment in violation of the requirements of § 1981. In order for a single incident to serve as grounds for a claim of hostile work environment under this law, the Third Circuit explained that the incident must be so “extreme to amount to a change in the terms and conditions of employment.” Thus, not every incident will be enough to meet this new standard, though the decision unfortunately does not provide much clarity at all as to what such circumstances must be to ultimately meet this standard.

The instant decision certainly creates a precarious situation for employers. While ultimate success in each case of this kind will often depend heavily upon the facts giving rise to the case, this decision certainly provides a strong incentive for employers to continue to implement strong anti-harassment policies and training so that everyone understands that zero tolerance of any racially intolerant or similar inappropriate comments is the rule in your workplace.  Otherwise, you could learn the hard way as the employer in this case did that there are certain pernicious comments that should never be uttered in any workplace.0

The Notice of Tort Claim Was Timely Received, but Is It Statutorily Compliant?

By:  Jessica M. Anderson, Esq.

By way of background, under the New Jersey Tort Claims Act, a Plaintiff may not bring suit against a public entity or public employee unless the Plaintiff presented the public entity or public employee with a pre-suit notification of the claim.  N.J.S.A. 59:8-3.

The Tort Claims Act provides for specific procedures by which a claim may be brought against a public entity. N.J.S.A. 59:8-4 sets forth the specific content that must be included in a notice of claim:

A claim shall be presented by the claimant or by a person acting on his behalf and shall include:

  1. The name and post office address of the claimant;

  2. The post-office address to which the person presenting the claim desires notices to be sent;

  3. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;

  4. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;

  5. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and

  6. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.

In order to preserve a claimant’s right to proceed, the notice of claim “must substantially comply with the statutory content requirements.”  Newberry v. Township of Pemberton, 319 N.J. Super. 671, 679, 726 A.2d 321 (App. Div. 1999).  Failure to assert a basis for the public entity’s liability is a clear invitation for the Court to dismiss a Plaintiff’s claim.  Without a basis for liability, the public entity would be unable to promptly investigate the claim which is an essential reason for the notice requirement.  Beauchamp v. Amedio, 164 N.J. 111, at 121-22 (2000).

In Newberry v. Township of Pemberton, Plaintiffs submitted a timely notice of claim to the Township, which stated that another vehicle ran a stop sign at an intersection and struck their vehicle.  319 N.J. Super. 671, 674 (App. Div. 1999).  The Appellate Division affirmed the trial court’s decision dismissing Plaintiffs’ complaint, finding that a timely notice of tort claim which states that there has been a car accident causing injury, but failing to assert any basis for the public entity’s liability for that accident, does not substantially complied with the substantive requirements of N.J.S.A. 59:8-4.  Similarly, in the unpublished decision Aguilar v. Essex County Dep’t of Parks & Rec., Plaintiff served a timely notice of claim alleging that he was injured when his right leg went into a depression in the area of the main exit of a County owned park.  Aguilar v. Essex County Dep’t of Parks & Rec., 2009 N.J. Super. Unpub. LEXIS 1790, at 2-3 (App. Div. July 9, 2009).  However, at Plaintiff’s deposition, Plaintiff testified that he fell in a different area of the park than what was indicated in his notice of tort claim.  Id. at 4.  The Appellate Division affirmed the trial court’s order dismissing Plaintiff’s Complaint finding that Plaintiff’s notice of claim was materially deficient and failed to meet the requirements of N.J.S.A. 59:8-4 because the notice did not accurately identify the place where the alleged fall occurred thus failing to assert a basis for the public entity’s liability that would permit the entity to promptly investigate the claim.  Id. at 11-12.

Failure to assert a basis for the public entity’s liability is only one of numerous arguments that can be made as to why a timely received notice of tort claim is not statutorily compliant.  In order to ensure that the proper defenses are being raised on the public entity’s behalf, the claim should be reviewed to determine that all available defenses are being asserted.

Capehart Scatchard Shareholder Addresses First Year Law Students

Capehart Scatchard Shareholder, Sanmathi (Sanu) Dev, recently served as a panelist at Rutgers Law School’s Professionalism Hour on Networking.  Ms. Dev was one of five attorneys participating in a discussion attended by first year law students.  The panelists provided the students with strategies for effective networking and offered insights on how to build meaningful professional relationships, which is key for a successful legal career.

A Hamilton resident, Ms. Dev concentrates her practice on school law and labor and employment law.  She is experienced in representing, advising, and defending boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline and civil rights.  She leads Capehart Scatchard’s School Law Blog, which focuses on cases, court decisions, and current developments affecting education law in the state of New Jersey.  Ms. Dev is the Chair of the Firm’s Diversity and Inclusion Committee, which seeks to facilitate the Firm’s efforts to achieve and maintain a diverse and inclusive workplace at every level of our organization.  She received her law degree from Rutgers Law School at Camden and her B.A. degree from Boston University.

Capehart Scatchard Shareholder Educates Philadelphia Insurance Firm on Ethical Issues for Insurance Claims Adjusters

On, November 1, 2017, Christopher J. Hoare, Esq. presented an in-office seminar at Graham Company in Philadelphia, PA entitled, “Ethical Issues for Insurance Claims Adjusters,“ which was attended by fifteen (15) claims and insurance professionals including several in-house attorneys. Graham Company is an established insurance brokerage/TPA firm headquartered in Philadelphia. The seminar covered state and national ethical standards for insurance claims adjusters, emphasizing the fact that much like lawyers, their work affects the public’s trust in the claims process. It is important for adjusters, regardless whether they are independently contracted or work in-house, to strictly adhere to the codes of ethics applicable in their respective states and to maintain fairness and honesty when dealing with all claimants. During the presentation, Mr. Hoare spoke of the penalties adjusters face should they violate or breach any provision of state rules or guidelines, such as those within the Unfair Claims Settlement Practices Act (UCSPA). Adjusters also learned about the deadlines for acknowledging and investigating submitted claims under the Pennsylvania Ethics Code. His presentation stressed the importance of competence and diligence when handling a claim; an adjuster should not handle any claims that exceed their current expertise and they should be knowledgeable on the terms and conditions related to that claimant’s insurance coverage. He concluded the seminar with how adjusters should handle statements and negotiations with witnesses and claimants especially those made under duress.

As an added bonus, the seminar was CLE approved. Attendees received 2.0 hours of CLE and/or CE credits.