In a recent unpublished opinion, New Jersey’s Appellate Division ruled that a jury should have the opportunity to decide whether the Jersey City Police Department harassed an individual, Mr. Holmes, because he is transgender, in violation of the New Jersey Law Against Discrimination (“LAD”).
Mr. Holmes was arrested by members of the Jersey City Police Department for allegedly shoplifting (a charge the department apparently subsequently dropped). Mr. Holmes claims that while he was imprisoned members of the police department subjected him to demeaning and insulting comments, including several police officers referring to him as “it,” saying “so that’s a fucking girl?” and calling his transgender status “bullsh-t,” as well as one police officer threatening to put his fist down Mr. Holmes’ throat “like a f-cking man.”
Mr. Holmes sued Jersey City, claiming it had harassed him because he is transgender in violation of the LAD. The LAD expressly prohibits gender identity or expression discrimination, including the fact that an individual is transgender.
Although Mr. Holmes is not an employee of Jersey City, he sued under a provision of the LAD that prohibit discrimination in places of public accommodation. Previous cases have recognized that a police department is a place of public accommodation. The standards that apply to determine whether harassment in a place of public accommodation is legally actionable are very similar to the standards that apply to harassment in the workplace. In other words, to prove his claim Mr. Holmes has to prove Jersey City harassed him because of his gender identity or expression, and the harassment was so severe (bad) or pervasive (frequent) that a reasonable transgender person in his position would find the environment hostile, threatening and demeaning.
In November 2015, the trial judge dismissed Mr. Holmes’ case, finding the police department’s “rude” and “insensitive” comments were not sufficiently severe or pervasive to violate the LAD. Mr. Holmes appealed.
On April 27, 2017, in Holmes v. Jersey City Police Dep’t, the Appellate Division reversed the lower court’s ruling. It concluded that a reasonable jury could find Jersey City’s conduct constituted actionable harassment. In doing so, the appellate court recognized that since Jersey City had arrested Mr. Holmes and held him in jail, he was in “a uniquely vulnerable position.” It further acknowledged that police officers are in a position of authority and “wield tremendous power over arrestees,” circumstances that could have magnified the impact of their comments to Mr. Holmes. The Court further noted that the police officers’ harassing comments included a threat of physical violence. It also explained that under the circumstances the police officers’ conduct toward Mr. Holmes could have encouraged other prisoners to attack or otherwise harm him. In fact, Mr. Holmes testified that while he was incarcerated he avoided discussing the fact that he is transgender out of fear that other prisoners would cause him physical harm.
As a result, the Appellate Division remanded Mr. Holmes’ case to the trial court so he can have an opportunity to try to prove his case to a jury.