Single Anti-Gay Comment May Create Hostile Work Environment

Kwiatkowski v. Merrill Lynch, A-2270-06T1 (App. Div., August 13, 2008) – Continuing the trend of recent cases which have expressed little tolerance for bigoted comments in the workplace, the Appellate Division held that a single anti-gay remark by a supervisor – who allegedly called her subordinate a “stupid fag” under her breath after an argument – may be enough to create a hostile working environment under the NJLAD, and sent the case back for a trial.  The Court found the facts here comparable to those in Taylor v. Metzger, 152 N.J. 490 (1998), where the Supreme Court held that a single racist remark by a supervisor, who called a subordinate “jungle bunny,” could create a hostile working environment.  The Kwiatkowski decision follows the decision last month in Cutler v. Dorn, in which the Supreme Court held that anti-Semitic remarks in the workplace were serious enough to create a hostile working environment.

The Kwiatkowski decision is also significant because it recognized the “subordinate bias,” (a/k/a “cat’s paw”) theory of discrimination, which holds that an employer may be liable if a biased supervisor has input on an employment decision (here, termination), even if the ultimate decision maker himself/herself was neither biased nor aware of the subordinate supervisor’s bias. This theory recognizes that an employment decision may be tainted with the bias of a supervisor, for example through selective enforcement of a work rule, even if the supervisor relays factually accurate information and does not make the actual decision.

Note: This article appeared in the September 2008 issue of the New Jersey eAuthority.