You Can Say What?! New Jersey District Court Rejects Claims of Hostile Work Environment

On July 29, 2023, the United States District Court for the District of New Jersey in Tavares v. Builders FirstSource Northeast Group, Inc., granted Defendant’s Motion for Summary Judgment most notably finding that racist and sexual comments that Plaintiff used to support his claim of hostile work environment did not rise to the “severe and pervasive” standard necessary to support a claim. This case harkens back to the notorious case of Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999), where several anti-Semitic comments were found insufficient to meet the “severe and pervasive” standard. Heitzman was of course cited by every defense lawyer for the next decade to try to defeat hostile work environment claims. So, the question becomes does Tavares mean that the New Jersey courts will become more skeptical of plaintiff’s claims and more supportive of employer defenses like in Heitzman, despite the Me Too movement and the seeming reluctance by the New Jersey judiciary to grant summary judgment to employers? The answer is context matters. There are lessons from Tavares to be sure, but it does not yet herald a major shift to employers in the New Jersey courts.

Facts

Steven Tavares, a multi-racial male, was employed as a Load Builder and Forklift Operator by Defendant, Builders FirstSource (“BFS”), from September 2019 to March 2020.

In January 2021, Tavares proceeded to file a Complaint alleging BFS subjected him to severe and pervasive harassment due to race and sex in violation of the New Jersey Law Against Discrimination (“NJLAD”). Tavares’ claims were supported by several alleged comments supposedly made by employees and members of management directed towards employees, other than Tavares, that he believed were of a racist or sexist nature. Notably, most incidents were overheard by Tavares without hearing the prior conversation leading up to the comments.

On one occasion Tavares was asked by his supervisor if he had “thick skin” as he would need to work at BFS. While offended by the comment, Tavares initially didn’t believe the comment was related to his race. As reflected in his deposition testimony, Tavares stated he believed they were asking him if he was “soft or something” and later came to believe that the comment was related to his race as the same comment was made to “a lot of people.” In another instance, a comment made by a supervisor, whilst Tavares was in the restroom, was later repeated back to Tavares when he returned. Tavares had eaten three to four pieces of buffalo chicken pizza and a supervisor said to a group of employees, “You can tell he’s black because he ate all of the buffalo chicken pizza!” in relation to Tavares. Tavares also claims that he overhead a supervisor shout “f* black people!” but the comment was not directed at him, and he did not hear any of the conversation preceding the comment, and that he had not actually seen his supervisor make the comment, he thought it was his voice. Tavares also alleged that his supervisor called another supervisor “Black John” to differentiate the employee from his Caucasian counterpart also named “John.” Tavares also claimed that a co-worker kept saying “Monica” to mimic a racial slur but admitted that he did not think the employee who said the comment was talking to Tavares. Finally Tavares alleges that after his termination, his supervisor said he wishes he had never hired Tavares or four other Black employees, but Tavares admitted his supervisor likely said it because Tavares sought to negotiate a higher salary and that the other employees referenced had performance issues.

Tavares also alleged sexual harassment occurred in 2019 when several comments of a sexual nature were overheard by him and/or made towards him. First Tavares alleges that his supervisor while talking to two other employees said “pregnant p* is best” while Tavares was on the phone with his pregnant fiancé. Tavares testified he did not know if his supervisor and co-workers were talking about him but assumed they were. Second, Tavares testified that he overheard his supervisors discussing “free road head” but testified that the remark was not directed to him. Finally, Tavares alleges that while in the bathroom a co-worker told Tavares to “hurry up, this thing isn’t going to hold itself,” apparently in reference to his genitals.

After unsuccessfully trying to negotiate a pay raise, Tavares voluntarily resigned and less than a year later brought the above-referenced lawsuit.

Court Decision

As to the racial hostile work environment claim, the Court found that only one comment with a racial connotation was directed at Tavares specifically and which was uttered before his resignation, the comment about the buffalo chicken pizza. The Court explained that the test is whether a “reasonable [person in that racial group] believes that the conditions of employment are altered and her working environment is hostile” as set forth in Lehmann v. Toys R Us, Inc., 132 N.J. 587 (1993). The Court ruled that the comment was insensitive but not sufficient to support a hostile work environment claim because it was not threatening and would not affect the conditions of employment. As to the alleged sexual harassment comments, the Court found that only one comment was directed to Plaintiff, the bathroom comment, and ruled that it was not sufficient to interfere with the conditions of Plaintiff’s employment.

The Bottom Line

Context is everything. While some of the comments were clearly offensive and would otherwise normally meet the severe and pervasive standard, the fact that they were made either after Tavares resigned or were directed at others caused the Court to discount them. It is also important to note that this decision is from federal court where the judiciary is allegedly more employer friendly. In state court, it often appears that the motion judges have been conditioned by the appellate courts to find questions of fact and send employment litigations to trial rather than risk reversal by granting employers summary judgment. Finally, the Court was able to rule for the employer based on a number of key admissions that the employer’s counsel obtained from Tavares’ deposition. Rather than the revival of the Heitzman standard for hostile work environment, Tavares can best be seen as an example of: (i) why context for comments matters; (ii) why employers seek federal jurisdiction; and (iii) how good lawyering is key for employers in hostile work environment cases.

For more information, please contact Harris S. Freier, Esq., Partner in the firm’s Employment Law & Litigation Practice Group via email here or call 973.533.0777.