August 2, 2022
In Morris v. Rutgers-Newark, et al., the Superior Court of New Jersey, Appellate Division, held that Law Against Discrimination hostile educational environment and retaliation claims can be based on cumulative acts experienced by multiple members of a “small and cohesive unit” and rejected the Defendants’ argument that hostile educational environment claims required an individual analysis pertaining to each discrete protected trait of race and sexual orientation. It also reversed the trial court’s dismissal of Plaintiffs’ retaliation claims by viewing the “constellation of surrounding circumstances” in a light most favorable to Plaintiffs.
Plaintiffs were Rutgers-Newark students who were also on the roster of the 2014-15 women’s basketball team and alleged they were subject to insensitive and inappropriate race-based comments and comments regarding their sexual orientation by certain staff members of Rutgers-Newark.
The Court first considered the following elements of a viable hostile-environment claim under the New Jersey Law Against Discrimination (NJLAD). A student-plaintiff must show the complained-of conduct: “(1) would not have occurred but for the [student’s] protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of [education] have been altered and that the [educational] environment is hostile or abusive.” Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002).Op. at p. 16.Defendants unsuccessfully argued that the Plaintiffs’ claims must be examined on a Plaintiff-by-Plaintiff based relying on an earlier unpublished opinion from the Appellate Division.
The Court noted that the argument was inconsistent with the following New Jersey Supreme Court precedent that a hostile-environment claim may be based “on the cumulative [e]ffect of individual acts,” Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003) (alteration in original), and it has also recognized that, “[r]ather than considering each incident in isolation, courts must consider the cumulative effect of the various incidents, bearing in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the . . . environment created may exceed the sum of the individual episodes ,” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 607 (1993) (internal quotation marks omitted). Op at. p. 17.
To establish a prima facie case of retaliation under the LAD, plaintiffs must show: (1) they engaged in protected activity; (2) the activity was known to defendants; (3) they suffered adverse action by defendants; and (4) there was a causal link between the protected activity and the adverse action. Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013). Op at. pp. 22-23. The Court rejected Defendants’ argument that retaliation against one team member cannot be imparted to other team members as inconsistent with the broad reach of NJLAD. Accordingly, it reversed the grant of partial summary judgment regarding the retaliation claims.
Unfortunately, there are those who may still engage in the types of conduct clearly proscribed by NJLAD. This decision re-enforces the broad reach of NJLAD and the difficulty facing a Defendant in seeking summary judgment to dismiss such claims when there are allegations, at a minimum, of improper comments and conduct regarding a Plaintiff’s race and/or sexual orientation. For more information, feel free to contact Joe Gallo (jgallo@mkcilaw.us.com) or Anthony I. Perchiacca (aperchiacca@mkcilaw.us.com).A note of thanks to our Summer Associate, Randolph Portugal.