Victimless Harassment?

The New Jersey Supreme Court recently decided a case that some have viewed as "victimless harassment. " Battaglia v. UPS involved several interesting issues, but the one of present concern was the plaintiff's claim of retaliation for his objections to offensive comments made about women but not to any woman.

The Appellate Division had determined that an impact on women was necessary before such protesting such conduct was protected by the state Law Against Discrimination.  Essentially, the lower court had reasoned that, unless the acts protested were discriminatory, the protests weren't protected and, since the comments in question were never heard by any woman, they couldn't constitute discrimination.

The Supreme Court disagreed: the language at issue "is particularly vile, demeaning and offensive, bespeaking attitudes and views about women that have no place in the work setting."  Even though no woman would be able to sue for harassment based on that language, LAD protection is not limited to "those who voice complaints about directly demonstrable acts of discrimination."

It's not clear whether the court was holding merely that a plaintiff might reasonably believe such words violated LAD (even if they didn't) or whether it was reasoning more broadly that plaintiff's conduct was protected because it tended to "advance the broad purposes" of LAD, which would be a more radical reading.

The former reading is, at least as a matter of doctrine if not application, not a stretch from federal law (although most Title VII cases demand a  higher standard of reasonableness) and there is some support for it in the opinion's language ("we do not demand that [the plaintiff] accurately understand the nuances of the LAD").  But the court's repeated references to the purposes of the antidiscrimination law and how "ill-served" they would be by a contrary ruling, suggests a broader principle.

Or maybe this distinction is too fine-grained: perhaps the court is simply announcing that, in New Jersey, a person who acts in good faith to advance the antidiscrimination objective is protected regardless of the "reasonableness" of his or her belief about whether the protested conduct actually violates the statute.

In any event, Battaglia offers much broader protection against retaliation than does Title VII as it is usually read, and sends a clear message to the plaintiffs-side bar not to omit a LAD claim when suit is filed. 

The opinion has the potential to radically change the ground rules in New Jersey.  Although Battaglia itself involved "particularly vile, demeaning and offensive" language, its principle would seem to embrace less egregious comments so long as the attitudes expressed would constitute discrimination if acted upon.  Perhaps the most likely limitation of the new rule is the Supreme Court's   stress that "these were not the occasional words of a low-level employee having a bad day but were the words of a supervisor, uttered in meetings attended by managerial employees, both repeatedly and routinely."

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