One and Done: NJ Appellate Court Rules that a Continuing Violation Under the NJLAD can Apply to a Hostile Work Environment Claim Based on One Discrete Act

The New Jersey Appellate Division in Adel Mansour v. Brooklake Club Corporation, Inc., d/b/a Brooklake Country Club, A-2472-17T1 (App. Div. July 10, 2019) recently considered a hostile work environment claim by an Egyptian and Muslim cook who was allegedly subjected to a continuous pattern of derogatory remarks based on his religious and ethnic heritage. The Appellate Division reversed the trial court’s grant of summary judgment for the defendant, holding that (1) one act contributing to a hostile work environment claim is sufficient to invoke the continuing violation theory if it falls within the statute of limitations, and (2) courts must consider the totality of the circumstances when determining if harassing conduct is severe or pervasive to sustain a claim under the New Jersey Law Against Discrimination (NJLAD). 

Facts

Adel Mansour worked for the Brooklake Country Club as a cook from 2003 to December 1, 2016. He filed a complaint on November 18, 2015, alleging he was subject to continuous derogatory remarks based on his religion and ethnic background, resulting in a hostile work environment in violation of the NJLAD. The alleged conduct fell into three main categories. First, Mansour complained of the following specific incidents occurring outside the two-year statute of limitations: (1) he was regularly subjected to comments about Egyptian President Hosni Mubarak and the Muslim Brotherhood; (2) questioned about knowing when terrorist bombings would occur; (3) receiving text messages from his supervisor with the phrases “Insallah” and “Allah Akbar;” and (4) being referred to as “that mother fucker Egyptian” by his supervisor.

Second, Mansour complained of derogatory comments that occurred on unspecified dates, but that he alleged were occurring “all the time.” Specifically, Mansour faced suggestions that he was part of a “sleeper cell” and was offered to eat “devil’s meat” whenever he would cook pork. Finally, Mansour alleged a discrete act that undisputedly occurred within the statute of limitations period. In March 2014, when Malaysia Airlines flight 370 disappeared, Mansour’s co-worker hung a large world map in the kitchen and wrote on it, “Adel, where is it?” referring to the lost plane. Mansour’s supervisor and the co-worker also asked him about the missing plane.

Trial Court’s Ruling

Ruling on Brooklake Country Club’s motion for summary judgment, the trial judge concluded that Mansour’s hostile work environment claim was untimely and that the continuing violation theory did not apply. The Court stated:

[T]he majority of the alleged inappropriate statements and events occurred between 2003 and 2012. Then there was a break for a whole year. And then there was one isolated incident that occurred in 2014. And after that, nothing was alleged to have occurred between March of 2014 and November of 2015.

The trial judge also concluded the March 2014 world map incident was not severe or pervasive enough to create a hostile work environment. The trial judge did not address the devil’s meat or sleeper cell comments.

Appellate Division’s Decision

The Appellate Division reversed the trial judge’s decision, relying primarily on the continuing violation theory, which states “when the complained-of conduct constitutes ‘a series of separate acts that collectively constitute one unlawful employment practice[,]’ the entire claim may be timely if filed within two years of ‘the date the last component act occurred.’” In addition to the March 2014 world map incident, the Court relied upon the devil’s meat and sleeper cell comments which allegedly continued until Mansour filed his complaint. Therefore, the hostile work environment claim was held to be timely under the continuing violation theory under the NJLAD.

The Appellate Division also disagreed with the trial judge only analyzing the March 2014 world map incident to determine whether the alleged conduct was sufficiently severe or pervasive. Instead, the law requires an assessment of the totality of the circumstances. Viewing all the allegations as a whole in the light most favorable to Mansour, the Appellate Division held that a rational factfinder could reasonably conclude the complained-of conduct was sufficiently severe or pervasive enough to alter Mansour’s conditions of employment.

Bottom Line

In New Jersey, a hostile work environment claim may survive a statute of limitations defense under the continuing violation theory if one of the acts occurred within the filing period. However, in this case, Mansour alleged multiple acts of harassment within the filing period that the trial judge simply ignored. Similarly, the trial judge evaluated the severe or pervasive prong of a hostile work environment claim by only considering the March 2014 world map incident. The Appellate Division concluded that the trial judge erred by failing to consider the totality of the circumstances, including the devil’s meat and sleeper cell comments.

It is important that employers become aware of harassment in a timely fashion so that they can take immediate action to eliminate it from the workplace. Therefore, management must be trained to recognize harassment and take corrective action. Additionally, employees must be taught that harassing conduct will not be tolerated and to report harassment immediately so the employer may take corrective action.