This article was published in the May 2012 issue of the New Jersey eAuthority.
The Appellate Division has just ruled that New Jersey plaintiffs
no longer need to prove that they are actually members of a
protected class (race, religion, sexual orientation, etc.) to
maintain a cause of action for discrimination under the NJLAD;
being "perceived as" a member of a protected class (even
erroneously) is now sufficient. In Cowher v. Carson &
Roberts et. al., A-4014-10T1 (N.J. App. Div. Apr. 18, 2012), a
truck driver plaintiff sued his former employer and former
supervisors under the NJLAD alleging that "the continual
utterance of explicit slurs about Jews directed toward him"
constituted a hostile work environment on account of his religion,
notwithstanding that he himself was not Jewish, unbeknownst to the
harassers (who thought that he was)
New Jersey courts traditionally have allowed "perceived
as" coverage for disability claims under the NJLAD
but not for other claims. Here, the Appellate Division concluded
that there was "no reasoned basis to hold that the LAD
protects those who are perceived to be members of one class of
persons enumerated by the [LAD – the disabled –
] and does not protect those who are perceived to be members of a
different class, as to which the LAD offers its protections in
equal measure." Moreover, the court explained that if the
"plaintiff can demonstrate that the discrimination that he
claims to have experienced would not have occurred but for the
perception that he was Jewish, his claim is covered by the
LAD." This aggressive ruling essentially renders every New
Jersey employee a potential plaintiff under the NJLAD.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.