ADL: Decision clarifies criteria for religious discrimination claims

ADL: Decision clarifies criteria for religious discrimination claims

Religious discrimination complaints have doubled since 199′ and are up 13 percent from just two years ago, according to a statement from the Tanenbaum Center for Interreligious Understanding. A July 31 N.J. Supreme Court decision may help set an important precedent for resolving such cases.

Etzion Neuer, regional director of the Anti-Defamation League in New Jersey, said that while he has not seen a spike in the number of religious discrimination cases in this state, "the ADL is very gratified" by last week’s holding in Cutler v. Dorn, in which the court "spent considerable ink addressing the evils of anti-Semitism and its pernicious effect on Jews in the workplace."

"The Cutler case was very important to us," he said, explaining that in 1999 Jason Cutler, a police officer in Haddonfield, had sued the department, alleging that he was subjected to a hostile work environment and that his promotion was delayed due to anti-Semitism. The court held that a hostile work environment did exist, but granted no damages.

Both parties appealed, and in ‘007 the N.J. Appellate Court struck down the harassment ruling, holding that the alleged discriminatory conduct was "sporadic and not sufficiently severe or pervasive to create a hostile work environment." This despite the fact that — according to the recent decision — "the then-Chief of Police, Bill Ostrander, commented on Cutler’s Jewish ancestry ‘a couple times a month’ and often referred to Cutler as ‘the Jew.’ Once, Ostrander asked Cutler ‘where [his] big Jew . . . nose was.’ Lieutenant Lawrence Corson also made comments, such as ‘Jews are good with numbers,’ ‘why didn’t you go into your family business,’ and ‘Jews make all the money.’"

Neuer said that ADL filed a brief with the state Supreme Court in support of Cutler, contending that the appellate ruling created a different set of standards for religious discrimination than for discrimination against women or people of color. The ADL brief, he said, was referenced in the court’s decision overturning the finding of the appellate court.

Among other issues, ADL protested the appellate court’s "dismissive treatment of harassment by using the word ‘teasing,’" said Neuer, noting that ADL was deeply concerned about the precedent being set by the case. Not surprisingly, he said, "Jews who struggled so long on the road to workplace equality were extremely troubled" by this development.

Neuer said "Cutler" was particularly important in the wake of the 1999 Michael Heitzman case, an unsuccessful lawsuit brought by a Jewish man in Monmouth County who complained of his employer’s anti-Semitic comments, but only after he was fired. The appellate division held that the comments "were not sufficiently severe or pervasive to constitute a hostile work environment." Heitzman did not appeal the decision.

"It was considered a significant setback for the rights of Jews in the workplace," said Neuer. "We hope ‘Cutler’ puts an end to this precedent."

Glen Rock resident Tedd J. Kochman, an attorney with the Newark office of Littler Mendelson, which deals exclusively with labor and employment issues, said that "the significance of the [Cutler] decision is its unambiguous clarification of the long-held misconception among legal practitioners" as to the level of evidence needed to establish religion-based claims of discrimination. He noted that as a result of the July 31 decision, "in New Jersey there is no greater burden of proof [needed] to establish religious discrimination" as opposed to discrimination based on gender and race.

"There was no opportunity to address this previously," he said. "The court was relieved to be able to comment," he added, pointing out that the Heitzman case was troubling for many, given the nature of what occurred and the resulting view that a higher standard had to be involved in cases of religious discrimination.

"The Cutler case clarified this misunderstanding," he said, pointing to the Supreme Court’s strong language in the current case, holding that "to the extent Heitzman suggests a higher threshold for demonstrating a hostile work environment when religion-based harassment is claimed, that misapprehension must end…. The threshold for demonstrating a religion-based, discriminatory hostile work environment is no more stringent than the threshold that applies to sexually or racially hostile workplace environment claims."

Neuer said the ADL also appreciated the additional language of the ruling, demonstrating the court’s sensitivity to Jewish concerns. Said the decision, "The derogatory statements by Cutler’s superior officers and colleagues about ‘Jews,’ and the many demeaning comments that stereotyped persons of Jewish ancestry, were aimed to have an effect on Cutler, whose faith and ancestry were known to the speakers…. The remarks were not only degrading but conveyed ongoing hostility toward Jewish people. Collectively, the statements could be viewed, objectively, as humiliating to a person of Jewish ancestry and faith."

Describing the ADL as a "clearinghouse for complaints" concerning anti-Semitism in the workplace," Neuer pointed out that the organization’s involvement in such cases is "judicious," with participation generally limited to advocacy. Most cases, he said, concern "difficulties with an accommodation issue," such as taking off for a holiday, and most times, he said, this requires a "nudge" rather than legal action.

Other cases, however, such as "Cutler," are more "dramatic," involving individuals who are faced with an ongoing pattern of discrimination.

"The decision was worth waiting for," he said, pointing out that cases involving the workplace "are among the most troubling cases. They affect [one’s] livelihood," he said, noting that many people do not move forward with complaints until after their employment has terminated.

"It’s a natural reaction to try and stick it out," he said. "It depends on the individual." And, he added, while "one of the most difficult things is to say we won’t handle a complaint, we must be comfortable that there is a legitimate claim. It’s not enough for a person to ‘feel strongly’ about it if there is nothing objective to point to. We have to balance the responsibility to be a strong voice of advocacy for the Jewish community and to make responsible decisions" about such cases.

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