New Jersey Employment Lawyer Blog
Sometimes, a case where a discrimination plaintiff loses can be just as instructive (or even more so) than an outcome where a discriminated worker was successful in court. Much like how the old TLC show “What Not to Wear” educated views about fashion by highlighting others’ faux pas, an unsuccessful case can be a “cautionary tale” of a sort, illustrating what not to do. One of the best ways you can ensure your discrimination case doesn’t get wiped out by a legal faux pas is by ensuring you’ve retained a skilled New Jersey employment discrimination lawyer to represent you.
L.B.’s gender discrimination case was one of those lawsuits that roundly failed. She worked at a bar in Morristown where the atmosphere was irreverent, and workers frequently joked with one another. Supervisory individuals engaged in this, as well.
One of the bar’s owners allegedly called L.B.by “names used to describe a person with an oversized posterior.” (The court did not specify those names.) Those nicknames appeared in place of L.B.’s given name on the weekly work schedule and, sometimes, on the woman’s pay envelopes. The nicknames may have been facetious or intentionally inaccurate, as L.B. weighed only 110 pounds and stood 5’2″.
When she resigned after less than two years at the Morristown bar, she made no mention of having been the target of harassment or gender discrimination. The bartender also was clear, during the pretrial portion of the lawsuit, that the nicknames “did not interfere with her work and did not change the conditions of her employment” at the bar.
This bartender lost at the trial and appellate levels. The reason she was unable to obtain a judgment and recover damages was that her case contained multiple critical holes.
In L.B.’s case, she was a woman and the alleged perpetrator was a man. However, your case need not involve a person of the opposite gender or someone whose sexual orientation indicates an attraction for people of your gender. A woman may be harassed (or be the victim of sex discrimination) even if the alleged perpetrator was another woman or was a gay man.
The Critical Importance of Tying Your Harassment to Your Gender
One of the most fundamental things you need, if you are pursuing a case based on gender discrimination and/or sexual harassment, is proof that the misconduct targeted toward you happened because of sex. If, for example, your supervisor called your male coworkers benign things like “Lucky Louie” and “Steady Freddie,” but called you and your female colleagues demeaning things like “Becky Big Butt” and “Thicc Thea,” that might potentially be evidence that the use of demeaning nicknames was based on sex. If, however, your male colleagues were nicknamed things like “Wide Load Willie” and “Flabby Floyd,” then the strength of your evidence diminishes dramatically because it is no longer as effective in establishing that the misconduct happened “because of sex.”
In L.B.’s case, the evidence pointed toward the nicknames not being because of gender. The court expressly found that “male and female employees working at the [bar] routinely called each other by names describing a person with a large posterior rather than using the employee’s actual name.”
Proof that You Actually Felt Harassed and that that Perception Was Reasonable
Another thing of which you need to be aware — if yours is a harassment case — is the required elements of a “hostile work environment.” A hostile work environment claim requires you to assert — and then prove — several components. For one, you need evidence of abusiveness/hostility. This exists on two levels: (1) that a reasonable person in your shoes would find the alleged conduct abusive or hostile, and (2) that you actually found the conduct abusive or harassing. If you were engaged in identical or similar forms of teasing and name-calling as what you complained about, (as was the circumstance in L.B.’s case,) it may become harder to demonstrate that second element.
Another of these essential things is that the harassment was severe enough or pervasive enough that it would make a reasonable person of your gender construe the terms and/or conditions of your employment to have changed. In L.B.’s case, her testimony indicated exactly the opposite. She stated that the nicknames “did not interfere with her work and did not change the conditions of her employment.”
L.B.’s case was a sex discrimination case gone wrong. To give yourself the best chance to end with a case “gone right,” get in touch with the experienced New Jersey sex discrimination attorneys at Phillips & Associates. Our attorneys are highly knowledgeable and highly driven to deliver positive outcomes for each of our clients. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.