The New Jersey Appellate Division has rejected Jersey City’s contention that the relatively high standard for determining a hostile environment for employment discrimination purposes should be applied to hostile environment claims regarding public accommodations, particularly when that public accommodation is the county jail and the alleged harassers are police officers dealing with a transgender arrestee.
Plaintiff Shakeem Malik Holmes, a transgender man, was arrested for shoplifting and transported to a Jersey City police station, where he contends that he was subjected to hostile treatment because of his gender identity. Though he was placed into a “female-only jail cell” and was “categorized as female for security purposes within the jail facilities,” that was not the basis for the hostile treatment claim he asserted under New Jersey’s Law Against Discrimination (LAD), which prohibits gender identity discrimination in places of public accommodation.
Holmes’ claim rests on his allegation that “police officers made demeaning, insulting, and threatening comments about his transgender status,” wrote Judge Susan L. Reisner in an April 27 opinion for the Appellate Division. “Specifically, he alleges that several officers referred to plaintiff as ‘it,’ referred to plaintiff’s situation as ‘bullshit,’ and stated ‘so that’s a fucking girl?’ He also asserts that one of the officers threatened to put his fist down plaintiff’s throat ‘like a fucking man.’”
Appeals court finds tough employment claim standard need not be met
The Hudson County trial judge concluded that rude and insensitive comments “did not rise to the level of severe or pervasive LAD violations” and granted summary judgment to the defendants.
The “severe or pervasive” standard is normally applied to determine whether verbal harassment can create a hostile workplace environment in employment discrimination cases. But this case concerns treatment in a jail, not workplace harassment.
“In this case,” wrote Reisner, “the inquiry is whether plaintiff’s allegations, if true, could support a hostile environment claim under the LAD. We find that they could, and that plaintiff is therefore entitled to present his claim to a jury. In reaching that conclusion, we consider that plaintiff, as an arrestee temporarily incarcerated in the police station, was in a uniquely vulnerable position; that the individuals making the hostile comments were police officers, who wield tremendous power over arrestees; and that the comments included a physical threat. Under all the circumstances, a jury could find that the conduct was sufficiently severe that a reasonable transgender person in plaintiff’s position would find the environment to be hostile, threatening, and demeaning.”
The appellate panel pointed out that a previous ruling on which the trial judge relied, which apparently required a higher evidentiary standard for hostile environment workplace claims based on religion than for those based on race, “was overruled, in pertinent part… where the Court ‘unequivocally rejected the higher proof standard.’”
Reisner also pointed out that the Appellate Division has recognized that “the prohibition of discrimination in relation to public accommodation is functionally distinct from the ban on employment discrimination” and that “in the context of public accommodation discrimination, hostile comments that might not suffice to create a hostile environment in a work context may nonetheless violate the LAD.”
Reisner also wrote, “While a certain amount of strong language may be expected in the confines of a police department, defendant has not suggested that its personnel have any operational need to threaten, demean, or humiliate prisoners on the basis of their gender affiliation or membership in any other protected class. In fact, such conduct may encourage other prisoners to attack the harassment victim, thus undermining the orderly operation of the police lock-up as well as the safety of the transgender prisoner.”
The panel concluded the trial court’s summary judgment in favor of Jersey City should have been denied, and the case was sent back for trial on Holmes’ claim.
Holmes is represented by Deborah L. Mains of Costello & Mains.
