A Quiet Gay Rights Win

New Jersey appeals court offers job bias claim broad latitude in an unpublished ruling.

By: ARTHUR S. LEONARD | In an August 13 opinion, the New Jersey Appellate Division issued a ruling establishing for the first time an important doctrine regarding the state's Law Against Discrimination, and in the process also found that even a single homophobic comment by a job supervisor can create employment discrimination and hostile workplace liability.

Oddly, given the significance of the ruling, the opinion was classified as “not for publication” and signed by no one judge, but rather “by the court.”

Darren Kwiatkowski, a 24-year-old gay man who had recently graduated from NYU, began working in the Hopewell office of Merrill Lynch in early 2001, handling incoming telephone inquiries. He told few of his co-workers that he was gay, but believed many of them knew. He belonged to the LGBT employee group, the Rainbow Professional Network, but was not an active participant in its activities.

For more than two and a half years, several supervisors had few complaints about him, aside from occasional absences and some time-management questions regarding his phone calls. Generally, his performance drew high praise. However, when Theresa Wonder became his supervisor in the fall of 2003, things went downhill quickly.

That November, Kwiatkowski received a “final warning” concerning his absenteeism, and he claims that at that point Wonder began to put together the documentation to get rid of him, taking away some of his duties and portraying him as a poor performer. In late December, Wonder notified the Human Resources Department that he was not improving and asked that he receive a verbal warning.

Just before New Year's, when a high volume of calls into the office triggered a “Code Red,” things between Wonder and Kwiatkowski came to a head. She said he ignored the special work rules that such a situation entails, instead pursuing his own tasks, while he insisted there was simply a misunderstanding. She said he was insubordinate in responding to her criticism.

When Wonder reported the incident to Sandras Givas, a senior vice president, she was told Kwiatkowski would be terminated for insubordination. In making this determination, Givas made no independent investigation, relying instead on information Wonder gave her.

An incident on New Year's Eve is the main evidence Kwiatkowski relies on in his lawsuit. He alleges that as he was speaking with a co-worker, Wonder suddenly interrupted, saying, “I can't believe you. I was standing right there! How dare you be so unprofessional.”

“Neither Kwiatkowski nor the fellow employee had any idea what prompted Wonder's comments,” the court wrote. “A short time later, plaintiff said that, as Wonder passed him in the hallway coming back from the conference room, he heard her call him a 'stupid fag' under her breath.”

Kwiatkowski makes no claim that anyone else heard the comment, but, according to the court, said that “one of his fellow employees observed his reaction of utter shock as he came back to his desk. Plaintiff claimed that after work that day, as he went out to his car, his knees buckled, he started to hyperventilate, and he no longer felt safe speaking to anyone at work.”

Wonder denies making the “stupid fag” statement, claiming she did not know at the time that Kwiatkowski was gay. She says she overheard him, in talking to his other co-worker, refer to her as a “bitch,” which prompted her to interrupt them to let Kwiatkowski know the comment was inappropriate.

The first workday after New Year's, Kwiatkowski complained to HR that Wonder was harassing him, giving him panic attacks, but he did not mention the alleged “stupid fag” comment or the fact that he was gay and filed no formal complaint. A few days later, Givas, with Wonder on hand, fired Kwiatkowski, saying it was her own decision. She now maintains she did not know he was gay.

In June 2004, Kwiatkowski filed suit under state law alleging sexual orientation discrimination, a hostile workplace environment on account of his sexual orientation, and intentional infliction of emotional distress, for which he has presented psychiatric evidence. He specifically named Wonder as a co-defendant for “aiding and abetting” discrimination and harassment.

A Somerset County trial court dismissed the suit, and Kwiatkowski appealed.

The trial judge found that since Givas made the termination decision and there was no evidence she knew Kwiatkowski was gay, the sexual orientation discrimination claim could not be maintained. Any bias on Wonder's part, the judge ruled, could not be hung on the company.

The Appellate Division panel reversed, in a ruling that adopted, apparently for the first time by a New Jersey appeals court, the so-called “cat's paw” theory of employer liability which has prevailed in several federal courts. Under this theory, even if no bias is shown on the part of the decision-maker – in this case, Givas -the company could be liable for discrimination if a firing was made primarily based on information from or the recommendation of a biased supervisor. The real decision-maker is, in essence, the biased supervisor, according to this perspective, using the nominal decision-maker as a “cat's paw” to achieve their discriminatory goal.

Given this theory, the Appellate Division panel held, Kwiatkowski's discrimination claim could not be rejected out of hand – his claim that Wonder called him a “stupid fag” becomes an important disputed fact in the case.

Regarding Kwiatkowski's hostile environment allegation, New Jersey courts have generally found that stray remarks or isolated comments, even if uncivilized or nasty, are insufficient to sustain such a claim, except in unusual cases. However, here, the Appellate Division wrote, “Plaintiff argues that this comment, made to him as a gay man, was the equivalent of the 'jungle bunny' comment made to the African-American plaintiff” in a case where the state Supreme Court found evidence of a hostile work environment.

The court continued, “As plaintiff's treating psychiatrist noted, the effect of such a comment was to make him question his identity and his decision to identify himself as a gay man in a straight world… we believe the comment made to plaintiff was the equivalent of 'receiving a slap in the face' because the injury was 'instantaneous.'”

Perhaps most remarkably, the Appellate Division allowed the claim for intentional infliction of emotional distress claim to proceed. This sort of claim typically requires showing intentional, totally outrageous conduct that falls far outside the bounds of civilized conduct. In New York, for example, the highest court has set the bar so high that it is almost impossible to satisfy.

“Employees are entitled to greater protection than strangers from insults and that employers have a greater duty than strangers to avoid inflicting emotional distress,” the Appellate Division found. “Thus, an employer's position of authority and the abuse of the employer/employee relationship can contribute to a finding of extreme and outrageous conduct.”

The embarrassment the allegations in this case could cause to Kwiatkowski, Wonder, and Merrill Lynch may have prompted the court to peg its opinion “not for publication,” but an appellate ruling of such significance for other parties is customarily released for publication so that it can be cited as authority in subsequent cases. Whether the court was hedging its bets against the possibility that its legal reasoning could yet be overturned by the New Jersey Supreme Court cannot, of course, be known.

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