On December 5, 2018, the New Jersey Appellate Division, in an unpublished opinion, (N.W v. Greater Egg Harbor Regional High School District, Superior Court of New Jersey, Appellate Division,Docket No. A-5079-16T4), affirmed the trial court’s grant of summary judgment dismissing plaintiff’s complaint against a school district which alleged that a single racially disparaging remark stated a claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.The school district successfully argued that this was a single incident of unauthorized conduct by a low-level employee who was not part of the school’s administration, and had no policy-making authority.
On April 28, 2015, plaintiff, an African-American student at Absegami High School during the 2014-2015 school year, stayed after school and went to the cafeteria. The students were told that they needed to leave the building. Plaintiff claimed that a security guard uttered a racially disparaging remark causing him pain and suffering that discouraged him from returningtoandenjoyingtheschool,aplaceofpublicaccommodation.Following the incident, he continued to attend school, had no further contact with the security guard and was not otherwise prevented from attending school.
In dismissing Plaintiff’s complaint with prejudice, the trial judge held that the racially disparaging remark was clearly outside the scope of his employment. Further, it noted that plaintiff did not contend that the school board’s response to the incident “was anything other than appropriate remedial action.”The trail judge also concluded this was “an isolated remark made by one security officer. There’s no evidence of any hostile or pervasive environment of discrimination.”
According to the trial judge, N.J.S.A. 10:5-12(f) (1) does not impose “strict liability on the part of the school board for the actions of the employee.”The judge further noted the statute “does not go [so] far as to create vicarious liability on the part of the employer for actions of an employee that are outside the scope of [the] employment relationship.”
While engaging in a de novo review of the trial judge’s ruling, the Appellate Division noted:
In this case, plaintiff’s ability to attend Absegami High School was not ultimately impaired, although, according to his version of the events, the discrimination “discouraged [him] from returning to and enjoying the school” and he successfully sought to avoid further contact with Blazo.Notably, Blazo did not tell plaintiff he was not welcome at the school, much less that he was not welcome because he was African-American.Indeed, he was escorted from the school because school hours had ended, not because of his race.
Op. at pp. 8-9.
In affirming the trial court, the Appellate Division concluded:
We find no basis for liability on defendant’s part.We decline to read N.J.S.A. 10:5-12(f)(1) as imposing strict or vicarious liability on an employer forasingleincidentofanunauthorizedcommentbyitsemployee,which violates the employer’s anti-harassment policy, where there is no actual or constructive notice that the employee has exhibited discriminatory conduct in the past, and the comment did not relate to the plaintiff’s present or future use of school facilities.
Op. at p. 11
The school district was not held liable for a single incident of an unauthorized comment by a low level employee in violation of its anti-harassment policy because, in part, the school district took prompt remedial action by imposing discipline. This coupled with the absence of notice and the absence of Plaintiff being prevented from attending the school after the incident contributed to the Appellate Division’s decision to affirm the trial court’s order granting summary judgment to the school district.
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