In a decision published today, Dunkley v. S. Coraluzzo Petroleum Transporters, A-3252-12T1 (N.J. App. Div. September 16, 2014), the Appellate Division found that a co-worker’s racial harassment of a fellow employee did not constitute a violation of the Law Against Discrimination.
The employee had alleged that his coworker, who had been providing on-the-job training to him, had made several racial remarks to him during his training, including references to the Ku Klux Klan and “black thugs.” The employee reported his concerns to management, who reassigned him to another co-worker for training. The employee alleged that he experienced retaliation after he made his complaint, including ostracism from other employees, which eventually led him to resign.
The court examined whether there was enough evidence for the employee to prove that the harassing co-worker was, in fact, his supervisor. Supervisor harassment is treated more seriously than co-worker harassment under the law. The court decided that, under the facts of this case, it was “debatable” whether the harassing employee was a supervisor or not. The court went on to consider, however, whether the employer had effective policies in place to deal with workplace discrimination and, if so, whether the employee followed them. The court found that the employer did have such policies, and that the employee failed to follow them. Therefore, the court found that the employer could not be held legally responsible for the actions of its racially insensitive employee.
This case is a cautionary tale for all employees who suffer discrimination at work. If your employer has anti-discrimination policies in place, you need to follow them to the best of your ability. This often means making a complaint of discrimination to your management. You need to be careful about how you make your complaint, however, since it may backfire. This is the time to start talking to an employment lawyer. With the proper legal advice and guidance, you can make your complaint without losing your job and/or hurting your chances of winning a discrimination lawsuit.