Objection to Customer’s Sexual Harassment Protected from Retaliation

The New Jersey Law Against Discrimination (“LAD”) prohibits employers from retaliating against employees who object to harassment in the workplace.  A recent case recognizes that the LAD also protects employees who object to sexual harassment committed by a customer.

Nicole Prager was a receptionist for Joyce Honda.  One day, a customer tugged at the arm of her shirt and exposed her bra at work.

Female Employee Being Sexually Harassed by CustomerAfter the incident occurred, a service manager asked Ms. Prager if she wanted to file criminal charges against the customer.  When Ms. Prager indicated she was not sure, the manager told her she had to decide within 15 minutes.  Ms. Prager believed the manager was trying to discourage her from pressing charges because the harasser was a very good customer who had purchased approximately 20 cars during the previous year.

Approximately one week later, Ms. Prager sent an email to the dealership’s vice president in which she described how shocking and embarrassing the sexual harassment had been and indicated she was considering pressing charges against the customer.  At Ms. Prager’s request, the next morning she met with the vice president, who was joined by the dealership’s general manager.  According to Ms. Prager, the general manager told her she was acting immaturely and scolded her for discussing the incident with her coworkers. At the end of the meeting, the vice president called the police and reported the incident.

Ms. Prager claims that after this, her coworkers began to avoid her.  During a subsequent meeting, she received two written warnings for leaving work early, one of which occurred a few days before the harassment took place.  Ms. Prager got extremely upset when she received these warnings, which she felt were unwarranted, which she demonstrated by raising her voice and using profanity in response.

The next day, Ms. Prager met with the vice president, general manager, service manager and assistant service manager to discuss her reaction to the warnings.  During that meeting, she made it clear that she believed she had been disciplined in retaliation for pressing charges against the customer, particularly in light of the fact that when she and her coworkers left work early in the past they were not written up.  Although the dealership offered to withdraw the warnings, toward the end of the meeting Ms. Prager resigned.

During Ms. Prager’s trial, the court dismissed her case.  The judge concluded that the LAD’s anti-retaliation provision protects employees who object about discrimination or harassment committed by their employers, but not those who object to harassment committed by customers.  However, in Prager v. Joyce Honda, Inc., New Jersey’s Appellate Division reversed this ruling.  It recognized that the LAD’s anti-retaliation provision is broad, and held that Ms. Prager’s “report to the police of an offensive touching in her workplace by a customer of her employer” is a protected activity under the LAD.

Unfortunately for Ms. Prager, the Court  still affirmed the dismissal of her case.  First, it found she failed to prove a constructive discharge because her employer’s behavior was not “so intolerable that a reasonable person would be forced to resign rather than continue to endure it,” especially in light of the fact that she quit after her employer offered to withdraw the two warnings.

Second, the Appellate Division rejected Ms. Prager’s retaliation claim.  Although it found sufficient evidence to suggest the two written warnings were in retaliation for Ms. Prager pressing criminal charges against her harasser, it concluded those warnings did not constitute an “adverse employment action.”   Specifically, it ruled that a reasonable person would not consider the warnings to be “materially adverse” in a way that may have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court noted that Ms. Prager quit the day after she received the warnings, before they could cause her any other tangible harm, and despite her employer’s offer to withdraw them.  Accordingly, it affirmed the dismissal of her case.

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