Protecting Your Rights And Interests, No Matter The Issue

Severe and Pervasive Slurs

by | Aug 18, 2021 | Business Law, Employment Law |

Rios v. Meda Pharmaceutical, Inc.

NJ Supreme Court

June 16, 2021

The NJ Law Against Discrimination prohibits discrimination based upon race, ethnicity, and national origin, amongst numerous other protected categories. If you are alleging that the discrimination created a hostile work environment, you must show that the conduct was severe and pervasive.

On June 16, 2021, 5 years after Mr. Rios was fired, the New Jersey Supreme Court overturned the dismissal of his claims, finding that the lower courts had erred in finding that the comments made to Mr. Rios were not severe and pervasive enough to warrant a jury trial. Rios v. Meda Pharmaceutical, Inc.

The NJ Supreme Court instructed that the comments should be viewed from the perspective of a reasonable person standing in the shoes of the terminated employee, finding the two comments in question to be highly offensive to a person of hispanic descent. The fact that they were made by his supervisor and that he was fired after bringing these complaints to HR made it much worse. In an unanimous decision, the NJ Supreme Court reversed the decisions of the Appellate Division and the Trial Court to send the matter back for a jury trial on the issues. 5 years after he was fired, Mr. Rios will get his day in court.

The standard is that the comment(s) would be severe and pervasive enough to change the terms and conditions of your employment. Our courts have noted that racial epithets can be severe enough in a single comment and that the comments are always made worse when made by a supervisor.

All large corporations and public employers have HR departments whose sole function is to mitigate risk. Contrary to their stated purpose of being advocates for employees, they are not. Their sole job, secured by the company paycheck, is to make sure that they are doing what is necessary to mitigate risk. This means that they have glossy employee handbooks, conduct annual “trainings” and claim to have “zero tolerance” policies for discrimination and harassment. They do this because these are the first things that an administrative agency asks for proof of when conducting an investigation into a charge of harassment and discrimination in the workplace.

HR is also required to conduct an “investigation” into your complaints. You will find that you get no information at all about this investigation or how it unfolded, which witnesses were contacted or what they said. In fact, some institutions have the witnesses sign a confidentiality agreement, which if violated, can result in termination. After several weeks, you will likely be told that your claims, especially if against a supervisor, manager or higher level employee, were not substantiated. Always. This is risk mitigation. For the company to admit otherwise exposes them to liability, and HR will have failed its mandate of risk mitigation.

As the NJ Supreme Court has confirmed in Rios and other cases, employment cases are very fact sensitive. No two cases are identical and there are no cookie-cutter, one size fits all solutions. While you have no control over HR’s risk mitigation mandate, you have control over making your complaint, providing sufficient information to direct a reasonable HR investigation, following up and documenting. Keep a record of all communications, keep a journal of ongoing incidents and retaliation, and keep up the pressure.

The Bottomline: Remember that HR has a job to do that does not involve actually irradicating harassment and discrimination from the workplace, while their risk mitigation efforts might appear to do so. The prevalence of such claims keeping lawyers like me in business clearly tells the true story. So, document, document, document your complaint, your claims, the witnesses, the circumstances, for yourself and in communications with HR.

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