“Perceived As” Discrimination Claims Now Extend to All Protected Categories Under New Jersey LAD

The Appellate Division has just ruled that New Jersey plaintiffs no longer need to prove that they are actually members of a protected class (race, religion, sexual orientation, etc.) to maintain a cause of action for discrimination under the NJLAD; being “perceived as” a member of a protected class (even erroneously) is now sufficient. In Cowher v. Carson & Roberts et. al., A-4014-10T1 (N.J. App. Div. Apr. 18, 2012), a truck driver plaintiff sued his former employer and former supervisors under the NJLAD alleging that “the continual utterance of explicit slurs about Jews directed toward him” constituted a hostile work environment on account of his religion, notwithstanding that he himself was not Jewish, unbeknownst to the harassers (who thought that he was)

New Jersey courts traditionally have allowed “perceived as” coverage for disability claims under the NJLAD but not for other claims. Here, the Appellate Division concluded that there was “no reasoned basis to hold that the LAD protects those who are perceived to be members of one class of persons enumerated by the [LAD – the disabled – ] and does not protect those who are perceived to be members of a different class, as to which the LAD offers its protections in equal measure.” Moreover, the court explained that if the “plaintiff can demonstrate that the discrimination that he claims to have experienced would not have occurred but for the perception that he was Jewish, his claim is covered by the LAD.” This aggressive ruling essentially renders every New Jersey employee a potential plaintiff under the NJLAD.