By: Kristen M. Doyle, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

In a case decided on June 16, 2021, the New Jersey Supreme Court held in Armando Rios Jr. v. Meda Pharmaceutical, Inc. that a supervisor’s use of two offensive slurs was severe and pervasive enough to support a hostile work environment claim for a jury to decide under the New Jersey Law Against Discrimination (“NJLAD”).

The facts on the summary judgment record established that defendant Meda Pharmaceutical, Inc. (“Meda”) hired Rios, a Hispanic male, in May 2015 as the company’s Director of Brand Marketing. Rios alleged that one month after he began working at Meda, his direct supervisor stated in regard to Rios’ wife looking for a new home that “it must be hard for a sp– to have to get FHA loans.”

Several weeks later, Rios asserted that his supervisor repeated the slur while the two were casting actresses for a television commercial, allegedly stating that the actress “would work” for the commercial “if she didn’t look too Sp–ky.” The supervisor denied making both of the statements.

Rios stated that he followed Meda’s Equal Employment Opportunity Policy and Complaint Procedure by meeting with Meda’s Director of Human Resources after each incident in order to orally report the comments.  Rios alleged that the Director of Human Resources was dismissive and did not take notes. Rios stated that he did not file a written complaint in fear of retaliation.

The company placed Rios on probation in February of 2016 for poor performance and eventually terminated him on June 1, 2016. Rios filed a complaint on March 31, 2017, alleging, among other claims, that Meda violated the NJLAD by creating a hostile work environment.

The trial court granted defendant’s motion for summary judgment, holding that no rational factfinder could conclude that the alleged comments were severe or pervasive enough to create a hostile work environment. The Appellate Division affirmed, and the New Jersey Supreme Court granted certification.

The Court reversed and remanded the case for trial, holding that when viewing the evidence in the light most favorable to the plaintiff, that a rational jury could conclude that the demeaning and contemptuous slurs uttered by a direct supervisor were sufficiently severe or pervasive to create a hostile work environment. The Court also heavily considered the assertions made by the employee that he reported the incident to his employer and the employer took no action. As a result, the Court denied summary judgment to the employer. This decision marks a shift in the application of the severe and pervasive standard in relation to establishing a hostile work environment under the NJLAD, significantly broadening the scope of past interpretations.

The Court determined that to evaluate a hostile work environment claim, the remarks must be viewed from the perspective of a reasonable Hispanic person in the plaintiff’s position. The Court then held that based upon the highly offensive and demeaning slurs spoken in a workplace setting by a direct supervisor, the derogatory comments present sufficient evidence of severity to create a genuine issue of material fact.

On February 3, 2021,the New Jersey Supreme Court in Moshe Rozenblit v. Marcia V. Lyles (A-41/42-19) (083434) unanimously upheld a provision in a Jersey City School District collective negotiations agreement (“CNA”) permitting two teachers employed and compensated by the district to work full-time on business of the Jersey City Education Association (“Association”).

Taxpayers sued contending that the CNA’s release time provisions violated the New Jersey Constitution’s Gift Clause.  The trial court granted summary judgment to the district based upon the district’s right under N.J.S.A. 18A:30-7 to grant “payment of salary in cases of absence not constituting sick leave.”  The Appellate Division reversed, concluding that the Board acted beyond the scope of its statutory authority when it paid the salaries and benefits of the two teachers who had been released full-time to work on Association business.

The Supreme Court reversed the Appellate Division and affirmed the trial court’s decision.  The Court reasoned that N.J.S.A. 18A:30-7 confers on boards the authority to grant to school employees leaves of absence in addition to and distinct from sick leave.  The Court explained that the State Constitution’s Gift Clause was not violated because the contract provisions serve the paramount public purpose of promoting labor stability in the public sector.   The public purpose is derived from the Employer–Employee Relations Act (EERA), N.J.S.A. 34:13A-2, in which the Legislature indicated that the best interests of the people of the State are serviced by the prevention or prompt settlement of labor disputes. The Court drew a nexus between the public purpose and the duties of the teachers which included facilitating labor-management relations, resolving disagreements, promoting effective communication between teachers and administration, promoting harmonious employer/employee relationships, and helping set and clarify school policies with the administration.  Accordingly, the Court determined that the full-time release provisions do not constitute gifts to the Association in violation of the State Constitution.

In light of the Court’s decision, school districts should be prepared for their unions to advance similar provisions in negotiations.

On January 21, 2021, the New Jersey Appellate Division issued a published decision in Simadiris v. Paterson Public School District in which it decided whether a board of education’s decision to certify tenure charges against an employee during private session violated that employee’s right to request such consideration in public. In short, the Appellate Division agreed with the school district and ruled that a board of education was prohibited from discussing the tenure charges during public session.

Tenure charges were brought against an employee of the Paterson Board of Education (“Board”). The employee’s attorney received notice two days before a Board meeting stating that the Board would consider during private session whether there was probable cause for the tenure charges. The employee objected to the notice. The Board responded that N.J.S.A. 18A:6-11 requires the discussion to occur in private session.

The employee sued, and the case made its way to the Appellate Division.  The employee essentially argued that N.J.S.A. 10:4-12(b)(8) gave her the right to demand that the discussion by the Board regarding her employment – whether to certify tenure charges – was to occur in public session. Further, the employee argued that the Board improperly failed to provide her with a Rice notice to allow the discussion to occur in public session. The Board argued that N.J.S.A. 18A:6-11 is the controlling statute and precludes such discussion and/or voting regarding tenure charges to occur in public session, as N.J.S.A. 18A:6-11 states, in part, “The consideration and actions of the board as to any charge shall not take place at a public meeting.”

Ultimately, the Appellate Division agreed with the Board and determined that N.J.S.A. 18A:6-11 clearly does not provide an employee the right to have the discussion and vote regarding whether to certify tenure charges in public session. In reaching this conclusion, the Appellate Division reasoned that while the Open Public Meetings Act generally favors all discussions and actions to be public, there are legislative exceptions, such as the one created by N.J.S.A. 18A:6-11. The employee’s rights in this case were not violated.