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How to Use Both Overt and Subtle Examples of Discriminatory Conduct to Make Your Case in New Jersey

Discrimination takes many different forms. Obviously, things like the “N-word” are extremely harmful and clearly racially discriminatory. However, the discriminatory conduct you endured does not necessarily have to be something as overt as that to be the basis for a successful discrimination case. If you think the mistreatment and harm you’ve endured at work was the result of your race, ethnicity, national origin, or other protected characteristic, then you should get in touch with an experienced New Jersey race discrimination lawyer to discuss your circumstance.

The religious and racial discrimination that M.T. allegedly endured illustrates this point well. The man, a Muslim born in India, worked as a software engineer for a temporary staffing agency. During that employment, M.T. worked on an assignment for a network of hospitals headquartered in North Jersey.

The engineer allegedly received many offensive comments and questions based on his religion. According to his complaint, these included “are you a jihadist” and “are you hiding a bomb?” The same coworker also allegedly told him to “shut up,” to “be quiet,” that “no one wants to know what you have to say,” that “nobody’s listening (to you),” and that coworkers don’t “understand your accent.”

After the engineer was removed from the assignment, he filed a discrimination lawsuit in federal court. the defense argued that many of the instances of discrimination the engineer cited were not examples of illegal discrimination. Specifically, the employer and the hospital network argued that, even if the coworker made statements like “shut up,” “be quiet,” “nobody’s listening to you,” and that no one cared what T.M. had to say, those things were merely intemperate or rude comments and should be discarded as proof of the engineer’s claims.

That argument did not work. The judge presiding over the engineer’s lawsuit pointed out that the Third Circuit Court of Appeals (whose rulings directly control cases in New Jersey, Pennsylvania, and Delaware) had, in previous cases, specifically ruled that facially neutral comments may still potentially represent instances of illegal discrimination.

Just Because It’s Facially Neutral Doesn’t Mean It’s Not Evidence of Discrimination

In a 2001 ruling, the appeals court declared that “the advent of more sophisticated and subtle forms of discrimination requires that we analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment, in evaluating a hostile work environment claim.”

Given everything the coworker allegedly said, it was possible that the coworker’s comments were “motivated by animus based on race, religion, or national origin,” meaning that the engineer had enough to continue pursuing his case.

The same general concepts also applied to analyzing whether or not the alleged misconduct amounted to “severe or pervasive” discrimination, as required by the law. The engineer alleged that the coworker made clearly anti-Muslim comments like calling him a “jihadi” and asking him if he was “hiding a bomb.” When deciding whether or not the coworker’s actions were severe or pervasive, the law does not limit the jury to considering only those comments. The coworker’s multiple instances of minimizing T.M. (often at staff meetings) through comments like “shut up,” “no one is listening to you,” and no one cares what you have to say, when combined with the overtly anti-Muslim statements, were enough to permit a reasonable jury to find that the engineer had proven “severe and humiliating conduct and/or pervasive and regular conduct which altered the conditions of Plaintiff’s employment.”

When your case relies on facially neutral misconduct, the law requires you to give the court some reasonable basis for inferring that those incidents were actually motivated by illegal discrimination. One way to do that, which T.M. did in his case, is to present a combination of acts that included overtly discriminatory things and facially neutral things. If you have a mix of comments or actions where some were overtly racial and many were not, the presence of those overt instances can allow you to use all of the instances in proving discrimination.

Any time you need to sue for illegal workplace discrimination, you’ll face challenges in making your case. That becomes even more true when your evidence relies on things that, even though nefarious and damaging, seem more benign or neutral on their faces. In meeting the challenges of this or any other employment discrimination case, you need the right advocate fighting for you. Count on the skilled New Jersey race discrimination attorneys at Phillips & Associates to provide the powerful and effective legal representation you need. To get our team started on your case, contact us online or at (609) 436-9087 today to set up a free and confidential consultation.

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