by Robert Wiener
NJJN Staff Writer

August 7, 2008

Jewish organizations are hailing a New Jersey Supreme Court decision that says complaints of anti-Semitism in the workplace must be judged by the same tough standards as allegations of racism or sexual discrimination.

In a unanimous voice, the court decreed on July 31 that “religion-based harassing conduct” is “as offensive as other forms of discriminatory, harassing conduct outlawed in this state.”

At the center of the case is Jason Cutler, a Jewish member of the Haddonfield Police Department since 1995.

In 2003, Cutler filed suit against a fellow officer, the township of Haddonfield, and its then director of public safety. A jury upheld his complaints that references to “dirty Jews,” his “big Jew nose,” and having his locker adorned with an Israeli flag and a modern-day German flag rose to the level of anti-Semitism.

But four years later, an appellate court overturned the verdict, saying such incidents were “merely offensive” and “did not establish a hostile work environment claim.”

The appellate judges argued that Cutler had taken part in ethnic teasing of fellow officers and had contributed to a “humor file” that preserved such jokes on paper.

Although Cutler denied those allegations, they made him appear unsuitable as a “poster child” for an anti-discrimination suit, said one Jewish leader. After their initial resistance, Jewish organizations, including the Jewish Community Relations Council of Southern New Jersey, the Anti-Defamation League, and the American Jewish Committee, filed amicus briefs on Cutler’s behalf.

“It is a great sense of vindication,” said Etzion Neuer, director of the Anti-Defamation League’s NJ region. “We are very pleased at the Supreme Court decision. When the appellate court decision came out, there was concern that Jews in the workplace might be facing a different standard than other groups. This decision seems to render those anxieties moot.”

“AJC is grateful that the NJ Supreme Court understood the seriousness of these comments,” said Jeffrey Sinensky, AJC’s general counsel. “Bigotry of any form should never be dismissed, but requires us all to stand up and speak out.”

Neuer said he found it “very encouraging to see the amount of ink that was devoted to expressing the pernicious effect of bigotry and anti-Semitism in the workplace. It relegates the term ‘teasing’ into the dustbin of history, where it belongs, and it is encouraging that the justices are attentive to this issue,” he said.

Cutler’s attorney, Clifford Van Syoc, told the Associated Press he found the decision “gratifying” and said he expected the officer would win damages at another trial. “There are many ways to be funny. You don’t have to use slurs,” he said.

Mario Iavicoli, the attorney who represented the borough of Haddonfield, took a different view.

“The court has raised the bar of the hostile work environment,” he told The Star-Ledger. “Now you can’t even joke in the workplace.”

Neuer disagreed.

“This shouldn’t mean the end of levity in the workplace. What it should be is a reminder of the importance of respecting one’s colleagues,” he said. “There is a time when playful ribbing crosses a line into painful bigotry. Maybe the lesson is, ‘When in doubt, don’t say it.’ This is not about stifling free speech. This is about redressing harassment in the workplace.”

Paul Mazur, a Newark employment attorney who defends management in harassment cases, called the decision “helpful for both the plaintiff bar and the defense bar. Once and for all, the court said there is not a greater burden of proof required for a religious-based hostile workplace claim compared to a sexual or race-based claim.”

Mazur said his firm counsels its clients to take firm action against religious slurs as well as racist or sexist bantering in the workplace.

“When you are aware of something, or you overhear a comment or a joke of a sexual or ethnic nature, what we advise our clients is that you can’t sweep it under the carpet. You don’t know how the recipient is going to handle the joke or the teasing. It is not appropriate.

“It is not hypersensitivity,” he said.” It is appropriately prudent.”

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