Two Racial Slurs Enough to Create Hostile Work Environment

Yesterday, a unanimous New Jersey Supreme Court ruled that two racially offensive slurs uttered by a supervisor can be enough to create a hostile work environment in violation of the New Jersey Law Against Discrimination (“LAD”).

Armando Rios, Jr. is Hispanic.  He worked for Meda Pharmaceutical, Inc. as its Director of Brand Marketing.  His immediate supervisor, Tina Cheng-Avery, was Meda’s Senior Director of Commercial Operations.

Two Racial Slurs Enough to Create Hostile Work EnvironmentMr. Rios claims Ms. Cheng-Avery made two racial slurs toward him.  First, he claims that when he was discussing his plans to purchase a new house, Ms. Cheng-Avery said “it must be hard for a Spi*k to have to get FHA loans.”  Second, he claims that the following month, when he and Ms. Cheng-Avery were casting actresses for a television commercial for one of Meda’s products, Ms. Cheng-Avery said one of the actress auditioning “would work … if she didn’t look too Spi*ky.”  Ms. Cheng-Avery denies she made either of those comments.

Mr. Rios claims he filed complaints with Meda’s Director of Human Resources, Glenn Gnirrep, after Ms. Cheng-Avery made each of those comments.

Mr. Rios eventually filed a lawsuit against Meda, Ms. Cheng-Avery and Mr. Gnirrep in which he claims they harassed him in violation of the LAD.

The defendants filed a motion for summary judgment.  The trial court granted the motion, finding no rational jury could conclude Ms. Cheng-Avery’s comments were severe or pervasive enough to create a hostile work environment, and thus dismissed his case.

Mr. Rios appealed, but the Appellate Division affirmed the trial court’s ruling.  While the Appellate Division recognized the word “Spi*k” “is a national origin epithet” that “even if only uttered twice, could have met the severity requirement,” it concluded Mr. Rios could not establish his claim because he had no corroboration that Ms. Cheng-Avery actually used that word, and the alleged harassment did not result in any adverse employment action.

The New Jersey Supreme granted Mr. Rios’s request to review his case.  In Armando Rios, Jr. v. Meda Pharmaceutical, Inc., it reversed the Appellate Division’s ruling and reinstated Mr. Rios’s lawsuit.

The Supreme Court noted that there is no requirement that harassment results in an adverse employment action for it to be legally actionable.

Further, repeating something it said in the earlier case of Taylor v. Metzger, the New Jersey Supreme Court explained that “‘an unambiguously demeaning racial message’ or an ‘ugly, stark and raw’ racist slur — can be sufficiently severe to establish a claim even if used only once.”  It also reiterated that “the severity of a remark can be ‘exacerbated’ when it is uttered by a supervisor.”  Moreover, it made it clear that, for a claim based on “offensive comments directed to a Hispanic employee, the remarks must be viewed from the perspective of a reasonable Hispanic person in the plaintiff’s position.”

The Supreme Court made it clear that the word “Spi*k” is a derogatory and highly insulting term used for individuals of Hispanic origin.  It further explained that Ms. Cheng-Avery’s alleged comment that the actress would work for the commercial “if she didn’t look too Spi*ky” reflects an opinion that individuals of Hispanic national origin should not be Meda’s public face.  The Court also noted the fact that Ms. Cheng-Avery was Mr. Rios’s immediate supervisor “compounded the severity” of her alleged discriminatory remarks.

Accordingly, the Court concluded that a rational jury could find Ms. Cheng-Avery’s alleged slurs were severe enough to create a hostile work environment for a reasonable Hispanic employee.  Accordingly, it ruled that Mr. Rios should have the opportunity to try to prove his harassment claim at a trial.