You can say what in workplace? Recent decision raises questions

N.J. District Court's rejection of claims of hostile work environment could be game-changer if other state courts follow suit

Harris S. Freier. (File photo)

On July 29, the U.S. District Court for the District of New Jersey in Tavares v. Builders FirstSource Northeast Group Inc., granted the defendant’s motion for summary judgment, most notably finding that racist and sexual comments that the plaintiff used to support his claim of hostile work environment did not rise to the “severe and pervasive” standard necessary to support a claim.

At first blush, this was an odd and seemingly surprising result.

This case harkens back to the notorious case in 1999 of Heitzman v. Monmouth County, where several anti-Semitic comments were found insufficient to meet the “severe and pervasive” standard. So, the question becomes: Does Tavares mean that the New Jersey courts will become more skeptical of plaintiff’s claims and more supportive of employer defenses like in Heitzman, despite the #MeToo movement and the seeming reluctance by the New Jersey judiciary to grant summary judgment to employers?

The answer is: Context matters. There are lessons from Tavares to be sure, but it does not yet herald a major shift to employers in the New Jersey courts.

A closer look.

The facts

Steven Tavares, a multiracial male, was employed as a load builder and forklift operator by the defendant, Builders FirstSource, from September 2019 to March 2020.

In January 2021, Tavares proceeded to file a complaint alleging BFS subjected him to severe and pervasive harassment due to race and sex in violation of the New Jersey Law Against Discrimination. Tavares’ claims were supported by several alleged comments supposedly made by employees and members of management directed toward employees, other than Tavares, that he believed were of a racist or sexist nature. Notably, most incidents were overheard by Tavares without hearing the prior conversation leading up to the comments.

On one occasion, Tavares was asked by his supervisor if he had “thick skin,” as he would need to work at BFS. In another instance, a comment made by a supervisor, while Tavares was in the restroom, was later repeated back to Tavares when he returned. Tavares had eaten three to four pieces of buffalo chicken pizza and a supervisor said to a group of employees, “You can tell he’s Black because he ate all of the buffalo chicken pizza” in relation to Tavares.

Tavares also claims that he overhead a supervisor shout “f— Black people!” but the comment was not directed at him, and he did not hear any of the conversation preceding the comment, and that he had not actually seen his supervisor make the comment, he thought it was his voice. Tavares also alleged that his supervisor called another supervisor “Black John” to differentiate the employee from his Caucasian counterpart also named “John.” Tavares also claimed that a coworker kept saying “Monica” to mimic a racial slur, but admitted that he did not think the employee who said the comment was talking to Tavares. Finally, Tavares alleges that, after his termination, his supervisor said he wishes he had never hired Tavares or four other Black employees — although Tavares admitted his supervisor likely said it because Tavares sought to negotiate a higher salary and that the other employees referenced had performance issues.

Tavares also alleged sexual harassment occurred in 2019 with three comments you’ll have to look up the case to read — some would call it “locker room” talk; however, the comments were clearly inappropriate and unacceptable in the workplace.

After unsuccessfully trying to negotiate a pay raise, Tavares voluntarily resigned and, less than a year later, brought the above-referenced lawsuit.

The court decision

As to the racial hostile work environment claim, the court found that only one comment with a racial connotation was directed at Tavares specifically and which was uttered before his resignation — the comment about the buffalo chicken pizza. The court ruled that the comment was insensitive but not sufficient to support a hostile work environment claim because it was not threatening and would not affect the conditions of employment.

As to the alleged sexual harassment comments, the court found that only one of the three comments was directed to plaintiff — and ruled that it was not sufficient to interfere with the conditions of plaintiff’s employment.

The bottom line

Context is everything. While some of the comments were clearly offensive and would otherwise normally meet the severe and pervasive standard, the fact that they were made either after Tavares resigned or were directed at others caused the court to discount them. It is also important to note that this decision is from federal court, where the judiciary is allegedly more employer-friendly.

In state court, it often appears that the motion judges have been conditioned by the appellate courts to find questions of fact and send employment litigations to trial rather than risk reversal by granting employers summary judgment. Finally, the court was able to rule for the employer based on a number of key admissions that the employer’s counsel obtained from Tavares’ deposition.

Rather than the revival of the Heitzman standard for hostile work environment, Tavares can best be seen as an example of:

  • Why context for comments matters;
  • Why employers seek federal jurisdiction;
  • How good lawyering is key for employers in hostile work environment cases.

Harris Freier is a partner and practice leader at Genova Burns in Newark.