In Bouziotis v. Iron Bar, LLC, 2022 WL 1144916 (N.J. Super. A.D. April 19, 2022), the court affirmed the dismissal of plaintiff’s gender-based hostile work environment under the New Jersey Law Against Discrimination (LAD).
In sum, plaintiff alleged that, among other things, instead of using plaintiff’s proper name, the defendant bar’s part owner (individual defendant Remlinger) called plaintiff names used to describe a person with an oversized posterior. (The court did not specify these names, referring to them only as “alternate names.”)
This case teaches that rude, unprofessional, inappropriate, etc. conduct is not, for that reason alone, sufficient to make out a claim for unlawful discrimination under the anti-discrimination laws.
From the decision:
Here, plaintiff is unable to satisfy the first prong under Lehmann because Remlinger’s use of the alternate names was gender neutral. It is undisputed that Remlinger used the alternate names when addressing both men and women working at Iron Bar. Plaintiff also conceded Remlinger’s use of the alternate names was not gender specific. Additionally, Iron Bar employees routinely referred to each other by the alternate names rather than their proper names.
Even if plaintiff had satisfied the first prong under Lehmann by demonstrating impermissible conducted based on her gender, in determining whether the conduct created a hostile work environment, “the harassing conduct itself must be evaluated….” Id. at 197 (quoting Lehmann, 132 N.J. at 606). “[A] hostile work environment discrimination claim cannot be established by … comments which are ‘merely offensive.’ ” Mandel v. UBS/Painewebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004) (quoting Heitzman v. Monmouth Cty., 321 N.J. Super. 133, 147 (App. Div. 1999)). Employees are “not entitled to a perfect workplace, free of annoyances and colleagues [they find] disagreeable.”
In reviewing Remlinger’s alternate names for plaintiff, under the totality of the circumstances, Judge McGovern correctly concluded the name-calling did not amount to severe or pervasive conduct consistent with case law. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (holding that merely offensive rudeness, teasing, and offhand comments do not amount to a hostile work environment); see also Heitzman, 321 N.J. Super. at 147 (“An employment discrimination law such as the LAD is not intended to be ‘a “general civility” code’ for conduct in the workplace.”).
While Remlinger’s referring to plaintiff by the alternate names was loutish, Judge McGovern correctly applied the case law, assessing the frequency and the severity of the alternate names directed to, and uttered by, other employees at Iron Bar. He also appropriately considered the conduct of all employees at Iron Bar. Further, based on the evidence in the record, Judge McGovern found nothing indicating the use of the alternate names at Iron Bar unreasonably inferred with plaintiff’s work performance. While the name-calling by Iron Bar employees may have been crude and childish, plaintiff uttered epithets directed to her fellow employees far more vulgar and unacceptable than anything Remlinger ever stated to anyone working at Iron Bar.
Unprofessional behavior, while inappropriate, differs from the discriminatory acts actionable under the LAD. See Oakley v. Wianecki, 345 N.J. Super. 194, 203 (App. Div. 2001). Insults and impolite comments, as evident here, are generally insufficient to establish a hostile work environment under the LAD. Taylor v. Metzger, 152 N.J. 490, 500-02 (1998). Merely offensive comments, such as referring to an employee by a word describing a large backside rather than the employee’s proper name as in this case, is insufficient to sustain a hostile work environment claim.
The court further noted that plaintiff could not prevail “based on her own offensive and inappropriate conduct” and concluded that the lower court “aptly concluded no reasonable juror could find [Remlinger’s alternate names for plaintiff] to be severe and pervasive enough to make a reasonable woman believe that the conditions of employment [were] altered and the working environment [was] hostile or abusive.”