(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 9, 1997 -- Decided February 18, 1998
Handler, J., writing for a majority of the Court.
The central issue in this appeal is whether a single derogatory racial comment directed against a
subordinate employee by a supervisor can create a hostile work environment in violation of the Law Against
Discrimination (LAD). A closely related issue is whether the utterance of this comment also constitutes the
tort of the intentional infliction of emotional distress.
Defendant, Henry W. Metzger, was the Burlington County Sheriff at the time of the incident.
Plaintiff, Carrie Taylor, is an African American who has been a Burlington County sheriff's officer since
1972. On January 31, 1992, Taylor was at the Burlington County Police Academy for firearms training.
Taylor encountered Metzger and Undersheriff Gerald Isham, and said hello. Metzger turned to Isham and
stated: "There's the jungle bunny." Isham laughed. Taylor believed the remark to be a demeaning and
derogatory racial slur, but she did not reply.
Taylor became a "nervous wreck," began crying, and went to the bathroom. She returned to the
Police Academy classroom, where she was the only African American and the only woman. Holding back
tears, she related her experience to co-workers. The other officers laughed; one responded: "I'm a black
Irishman." This further offended Taylor, who felt their reactions were insensitive.
On February 5, 1992, accompanied by two union grievance committee members, Taylor met with
Metzger and Undersheriff Davis. She demanded a written apology. Metzger stated that he had used the
phrase "jungle bunny" with a different connotation in the Marine Corps, claiming that he was not aware that
the remark had a derogatory connotation. Metzger badgered Taylor for interpreting the remark as a racial
slur and stated that he needed to think before deciding whether to apologize in writing.
The following day, Metzger summoned Taylor to meet with him. He offered a written apology in
which he admitted calling Taylor a "jungle bunny," but also claimed that Taylor had been wearing camouflage
fatigues at the time of the comment. Taylor refused to accept the apology because the description of her
clothing was not factually accurate. Metzger attempted to present a letter of apology to Taylor on February
10, 1992, but Taylor refused to accept it, stating she would like an attorney present.
Taylor disclosed the incident to the media, and it was publicized in several newspapers. Thereafter,
Taylor received harassing telephone calls and one piece of hate mail. She changed her telephone number to
an unlisted one. Following the incident, Taylor did not lose any income and her basic job duties remained
unchanged. She did, however, lose her position as a floor supervisor, and was told that only sergeants were
eligible for that position. Taylor felt she suffered a loss of dignity and self-respect, with other officers acting
coolly toward her and appearing afraid to speak to her.
Taylor claims the incident caused her emotional distress for which she consulted a psychiatrist on a
periodic basis between May 1992 and March 1993. She was afraid to leave work by herself and lived in
constant fear of reprisal. She suffered from severe insomnia, mood changes, and developed a psychiatric
itch. The psychiatrist treated Taylor with medication and diagnosed her with "post-traumatic stress disorder."
The psychiatrist concluded that Taylor's disorder was directly related to and caused by the racial slur of
Metzger.
The trial court entered summary judgment for Metzger. The Appellate Division affirmed in an
unreported decision. The Court granted certification.
HELD: A rational factfinder could conclude that Metzger engaged in discriminatory harassment by uttering a
racial epithet that was sufficiently severe to have created a hostile work environment. In addition, Taylor's
proffered evidence is sufficient to posit a claim based on the intentional infliction of emotional injury.
1. The Court in Lehmann v. Toys 'R' Us, Inc.,
132 N.J. 587 (1993), specifically adopted the "severe or
pervasive" test as part of its standard for determining whether discrimination in the workplace creates a
hostile work environment and violates the LAD. Under this standard, a single incident of invidious
harassment can create a hostile work environment. Racial epithets are especially egregious and capable of
engendering a severe impact. The gravity of the comment here is greatly magnified by the fact that it was
uttered by the chief executive of the office in which Taylor worked. Additionally, the circumstances were
sufficient so that a reasonable African American could believe that the conditions of her work environment
were altered. (Pp. 6-21)
2. To state a cause of action for intentional infliction of emotional distress, a plaintiff must establish
intentional and outrageous conduct by defendant, proximate cause, and distress that is severe. The fact that
Metzger uttered only one slur toward Taylor does not, as a matter of law, preclude the conduct from being
extreme and outrageous. This case may present the unusual circumstances where a single event may be
deemed extreme and outrageous. Although Metzger insists he was unaware that "jungle bunny" is a slur, a
rational factfinder is free to reject that contention. Since Taylor was treated by a medical professional for
what was diagnosed as post-traumatic stress disorder, a rational factfinder could conclude that she suffered
severe emotional distress. The factfinder must also determine whether Taylor's reaction was atypical, or
whether Metzger's conduct was capable of causing genuine and substantial emotional distress to the average
African American. (Pp. 21 -39)
3. The Court concurs in the dismissal of Taylor's prima facie tort claim. Such claims have been permitted in
the limited situations in which plaintiffs would have no other cause of action. Because the LAD and the tort
of emotional distress encompass the conduct complained of by Taylor, the Court has no opportunity to
determine the applicability of a cause of action for prima facie tort. (Pp. 39-41)
The judgment of the Appellate Division is REVERSED in part, and the case is REMANDED for
trial.
JUSTICE GARIBALDI, dissenting in part and concurring in part, is of the view that despite
Metzger's deplorable use of a racial slur, the workplace, objectively viewed, was not hostile. She believes
that the majority has substantially changed the Lehmann standard by holding that a plaintiff need not prove
any actual change in working conditions to establish a violation of the LAD.
CHIEF JUSTICE PORITZ, and JUSTICES POLLOCK, O'HERN, STEIN and COLEMAN join in
JUSTICE HANDLER's opinion. JUSTICE GARIBALDI has filed a separate opinion, dissenting in part
and concurring in part.
SUPREME COURT OF NEW JERSEY
A-
9 September Term 1997
CARRIE TAYLOR,
Plaintiff-Appellant,
v.
HENRY W. METZGER, BURLINGTON COUNTY
SHERIFF,
Defendant-Respondent.
Argued September 9, 1997 -- Decided February 18, 1998
On certification to the Superior Court,
Appellate Division.
Clifford L. Van Syoc argued the cause for
appellant (Clifford L. Van Syoc, attorney;
Evan A. Blaker, on the brief).
William B. Scatchard, Jr., argued the cause
for respondent (Capehart & Scatchard,
attorneys; Mr. Scatchard and Alison M.
Nissen, on the brief).
The opinion of the Court was delivered by
HANDLER, J.
The central issue in this appeal is whether a single
derogatory racial comment directed against a subordinate employee
by a supervisor can create a hostile work environment in
violation of the Law Against Discrimination. A closely-related
issue is whether, the utterance of this comment also constitutes
the tort of the intentional infliction of emotional distress.
The employee in this case, a county sheriff's officer,
claims that her employer, the county sheriff, uttered a racial
epithet against her in the presence of another supervisor, the
undersheriff. The victim filed a complaint against the sheriff
alleging primarily that the racial insult constituted a violation
of the Law Against Discrimination.
The trial court entered a summary judgment for defendant on
that claim. The court also dismissed other counts of the
complaint, namely, intentional infliction of emotional distress,
prima facie tort, and violation of federal civil rights
statutes.See footnote 1 The Appellate Division affirmed that judgment in an
unreported decision. This Court granted plaintiff's petition for
certification.
147 N.J. 578 (1997).
Because this case was determined on the basis of summary judgment, the evidence must be evaluated under this Court's summary judgment standard. That standard precludes summary judgment if the competent evidence, when viewed in the light most favorable to the non-movant, is sufficient to permit a rational factfinder to resolve the disputed factual issues in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The evidence assessed under that standard supports the following facts.
In 1972, plaintiff Carrie Taylor began working as a
sheriff's officer in the office of the Burlington County Sheriff.
On January 31, 1992, Taylor, who is African American, was at the
Burlington County Police Academy for firearms training and
weapons qualification. While there, she encountered defendant
Henry Metzger and Undersheriff Gerald Isham. Taylor said hello,
and, in response, Metzger turned to Isham and stated: "There's
the jungle bunny." Isham laughed. Plaintiff believed the remark
to be a demeaning and derogatory racial slur, but she did not
reply. She became a "nervous wreck," immediately began crying,
and went to the bathroom. Taylor subsequently returned to the
Police Academy classroom, in which she was the only African
American and the only woman. Holding back tears, she related her
experience to co-workers. The officers laughed; one responded:
"I'm a black Irishman." This comment further offended plaintiff,
who felt their reactions were insensitive.
Taylor thereafter consulted with her union attorney and a
member of the union grievance committee. On February 5, 1992,
accompanied by two union grievance committee members, Taylor met
with Metzger and Undersheriff Davis. Plaintiff spoke to
defendant about her grievance and demanded a written apology.
Defendant stating that he had used the phrase "jungle bunny" with
a different connotation in the Marine Corps, claimed that he was
not aware that the remark had a derogatory connotation.
Plaintiff told defendant that the remark was very insulting and
degrading. However, defendant badgered plaintiff for
interpreting the remark as a racial slur and brought her to
tears. At that point, Undersheriff Davis said that, without a
doubt, the statement was offensive. Defendant then stated that
he needed to think before deciding whether to apologize in
writing and explained that plaintiff could use such a letter
against him.
The following day, defendant summoned Taylor to meet with
him. Metzger offered a written apology in which he admitted that
he called Taylor a "jungle bunny," but also claimed that Taylor
had worn camouflage fatigues at the time of the comment. Taylor
refused to accept the apology because the description of her
clothing was not factually accurate; in fact, she had worn blue
jeans and a navy sweatshirt. Defendant hassled her for rejecting
the letter for that reason.
On February 10, 1992, Taylor again met with defendant.
Metzger again attempted to present a letter of apology to Taylor.
Stating that she would like an attorney present before accepting
anything from Metzger, she refused the letter.
Taylor disclosed the circumstances of the event to the media
and, as a result, the incident was publicized in several
newspapers, including the Philadelphia Inquirer, Courier Post,
and Burlington County Times. Thereafter, plaintiff received
harassing telephone calls and one piece of hate mail. She filed
a report with the Willingboro Police Department regarding the
harassment and changed her telephone number to an unlisted one.
Following the incident, plaintiff did not lose any income
and her basic job duties remained unchanged. However, she lost
her position as floor supervisor. Despite the fact that she was
told that only sergeants were eligible for that position, she
believed the incident caused her to lose the position. Plaintiff
felt she suffered a loss of dignity and self-respect. Other
sheriff's officers acted coolly toward her and were afraid to
talk to her. She was labeled a troublemaker and believed that
her co-workers were told to stay away from her. One, who had
attended the February 5 meeting, was subsequently told to "bow
out" of the matter; he feared continued involvement with
plaintiff's grievance.
Plaintiff claims that the incident caused her emotional
distress for which she consulted a psychiatrist, Dr. Ira L. Fox,
on a periodic basis between May 1992 and March 1993. She was
scared and remained "a nervous wreck." She was afraid to leave
work by herself and lived in constant fear of reprisal; she
bought a bullet-proof vest. Plaintiff suffered from severe
middle and nighttime insomnia; experiencing nightmares and
flashbacks of the incident, she would wake up hourly and then
have trouble falling back asleep. She also had mood changes and
developed a psychiatric itch. Taylor told Dr. Fox that she had
been losing her hair since the incident. Dr. Fox treated her
with an anxiolytic, Ativan. He diagnosed her with "adjustment
disorder with mixed emotional features" and later revised that
diagnosis to "post-traumatic stress disorder." He concluded that
her disorder was "directly related to and caused by the incident
to her person when she was reportedly called a jungle bunny by
Mr. Metzger." Although Dr. Fox determined that plaintiff still
needed ongoing psychotherapy to deal with the emotional stress
arising out of defendant's remark, plaintiff stopped seeing Dr.
Fox in March 1993 because she could no longer afford the therapy.
The Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-42, prohibits discrimination "because of race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, or nationality." N.J.S.A. 10:5-3. The gravamen of the complaint filed by plaintiff against Metzger is the allegation that the racial comment he directed against her constituted racial harassment, an act of discrimination in violation of the LAD.
In Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993), this Court formulated the basic standard for determining whether acts of harassment in the workplace constitute invidious discrimination in violation of the LAD. When a black plaintiff alleges racial harassment under the LAD, she must demonstrate that the defendant's "conduct (1) would not have occurred but for the employee's [race]; and [the conduct] was (2) severe or pervasive enough to make a (3) reasonable [African American] believe that (4) the conditions of employment are altered and the
working environment is hostile or abusive." Id. at 603-04
(emphasis omitted).
The Court in Lehmann specifically adopted the "severe or
pervasive" test as part of its comprehensive standard. Id. at
606-07. That test conforms to the standard for establishing
workplace racial or gender harassment under federal Title VII
law. See Meritor Sav. Bank v. Vinson,
477 U.S. 57, 67,
106 S.
Ct. 2399, 2405,
91 L. Ed.2d 49, 60 (1986) (holding that in order
to demonstrate hostile work environment, plaintiff must allege
that unwelcome conduct was "sufficiently severe or pervasive to
alter the conditions of employment and create an abusive work
environment" (emphasis added)). In choosing its test, the Court
clearly rejected an alternative regular-and-pervasive test that
requires repetitive or recurrent acts to establish workplace
harassment; that test would bar harassment-discrimination actions
that were "based on a single, extremely severe incident."
Lehmann, supra, 132 N.J. at 606. Consequently, under the chosen
standard -- severe or pervasive conduct -- one incident of
harassing conduct can create a hostile work environment. Id. at
606-07.
Other courts have also recognized that under the severe-or-pervasive test a single incident of invidious harassment can
create a hostile work environment. E.g., Torres v. Pisano,
116 F.3d 625, 631 n.4 (2d Cir.) ("Of course, even a single episode of
harassment, if severe enough, can establish a hostile work
environment."), cert. denied, __ U.S. __,
118 S. Ct. 563, 139 L.
Ed.2d 404 (1997); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) ("Within the totality of circumstances, there is neither a threshold `magic number' of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim."); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 n.4 (7th Cir. 1991) (indicating a single instance of racial harassment can establish a hostile work environment); Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 (11th Cir. 1989) ("It is thus incorrect to apply mechanically an absolute numerical standard to the number of acts of harassment which must be committed by the defendant before a jury may reasonably find that a hostile environment exists."); Reid v. O'Leary, No. Civ. A. 96-401, 1 996 WL 411494 (D.D.C. July 15, 1996) (holding that use of one epithet created an issue of material fact regarding whether the plaintiff's work environment was hostile); see Del Valle Fontanez v. Aponte, 660 F. Supp. 145, 149 (D.P.R. 1987) (recognizing that a single sexual advance can constitute sexual harassment); Nadeau v. Rainbow Rugs, 675 A.2d 973, 976 (Me. 1996) (observing that a single incident of sexual harassment may be sufficient to reach jury); Radtke v. Everett, 501 N.W.2d 155, 168 (Mich. 1993) (same); see also Rocha Vigil v. City of Las Cruces, 119 F.3d 871, 873 (10th Cir. 1997) (Lucero, J., dissenting) ("If sufficiently severe, harassment is actionable under Title VII -- regardless of its pervasiveness or frequency."). The Equal Employment
Opportunity Commission (EEOC) also recognizes that a single
incident, if sufficiently severe, can create a hostile
environment. Schott v Runyon, No. 4-G-1381-92, 1
996 WL 350896
(E.E.O.C. June 20, 1996) (citing EEOC Policy Guidance on Current
Issues of Sexual Harassment, Notice N-915-050, at 104 (March 19,
1990)). Nevertheless, while it "is certainly possible" that a
single incident, if severe enough, can establish a prima facie
case of a hostile work environment, "it will be a rare and
extreme case in which a single incident will be so severe that it
would, from the perspective of a reasonable [person situated as
the claimant], make the working environment hostile." Lehmann,
supra, 132 N.J. at 606-07.
Here, the basic issue of law is whether the single remark
uttered by defendant was, from the perspective of a reasonable
African American, sufficiently severe to have produced a hostile
work environment. Because this case was determined by summary
judgment, the key question and more pointed inquiry is whether a
rational factfinder could reasonably determine on the basis of
plaintiff's evidence that the racial insult directed at her by
the sheriff in the presence of the undersheriff was, under the
surrounding circumstances, sufficiently severe to have created a
hostile work environment.
Usually repeated racial slurs must form the basis for
finding that a hostile work environment has been created. E.g.
Amirmokri v. Baltimore Gas & Elec. Co.,
60 F.3d 1126, 1131 (4th
Cir. 1995) (finding a prima facie case of national origin
harassment because of repeated ethnic slurs uttered toward an
Arab-American employee); Boutros v. Canton Regional Transit
Auth.,
997 F.2d 198, 204 (6th Cir. 1993) (same); Davis v.
Monsanto Chem. Co.,
858 F.2d 345, 349 (6th Cir. 1988) (stating
repeated slurs are necessary to establish a racial harassment
claim), cert. denied,
490 U.S. 1110,
109 S. Ct 3166,
104 L. Ed.2d 1028 (1989); Erebia v. Chrysler Plastics Prod. Corp.,
772 F.2d 1250, 1256 (6th Cir. 1985) (holding repeated racial slurs created
a hostile work environment), cert. denied,
475 U.S. 1021,
106 S.
Ct 1197,
89 L. Ed.2d 311 (1986); Rogers v. Equal Employment
Opportunity Comm'n,
454 F.2d 234, 238 (5th Cir. 1971) (same),
cert. denied,
406 U.S. 957,
92 S. Ct. 2058,
32 L. Ed.2d 343
(1972). Generally, "`mere utterance of an . . . epithet which
engenders offensive feelings in an employee,' does not
sufficiently affect the conditions of employment to implicate
Title VII." Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21,
114 S. Ct. 367, 370,
126 L. Ed.2d 295, 302 (1993) (quoting Meritor,
supra, 477 U.S. at 67, 106 S. Ct. at 2405, 91 L. Ed.
2d at 60);
see also Bolden v. PRC Inc.,
43 F.3d 545, 551 (10th Cir. 1994)
(holding two racial slurs insufficiently severe because there was
no barrage of opprobrious racial comments), cert. denied, __ U.S.
__,
116 S. Ct. 92,
133 L. Ed.2d 48 (1995).
Some courts have found that a particularly offensive remark,
if not repeated, will not be sufficient to establish a hostile
work environment. E.g., McCray v. DPC Indus., Inc.,
942 F. Supp. 288, 293 (E.D. Tex. 1996) (holding sporadic racial slurs by co-workers insufficiently severe to establish a hostile work
environment), aff'd,
58 F.3d 640 (5th Cir. 1995); Bivins v.
Jeffers Vet Supply,
873 F. Supp. 1500, 1508 (M.D. Ala. 1994)
(holding a co-worker once calling the plaintiff a "nigger"
insufficiently severe to establish a hostile work environment),
aff'd,
58 F.3d 640 (11th Cir. 1995); Reese v. Goodyear Tire &
Rubber Co.,
859 F. Supp. 1381, 1385, 1387 (D. Kan. 1994) (holding
a manager insinuating that all black people abused drugs
insufficiently severe to establish a hostile work environment);
Bennett v. New York City Dep't of Corrections,
705 F. Supp. 979,
983 (S.D.N.Y. 1989) (concluding that corrections officer's
remark, "hey black bitch, open the . . . gate," to another
officer did not amount "to more than a mere episodic event of
racial antipathy" and was insufficient to sustain a claim of a
racially hostile work environment).
Nevertheless, a single utterance of an epithet can, under
particular circumstances, create a hostile work environment. As
expressed by the court in Nadeau, supra, although
many of the cases considering hostile
environment harassment claims[] involve a
pattern of inappropriate conduct, there is no
requirement that harassment occur more than
one time in order to be actionable. The
standard contemplates conduct that is either
severe or pervasive. Although the conduct
may be both, only one of the qualities must
be proved in order to prevail. The severity
of the conduct may vary inversely with its
pervasiveness. Whether the conduct is so
severe as to cause the environment to become
hostile or abusive can be determined only by
considering all the circumstances, and this
determination is left to the trier of fact.
The connotation of the epithet itself can materially contribute to the remark's severity. Racial epithets are regarded as especially egregious and capable of engendering a severe impact. See Robert J. Gregory, You Can Call Me a "Bitch" Just Don't Use the "N-word": Some Thoughts on Galloway v. General Motors Service Parts Operations and Rodgers v. Western Southern Life Insurance Co., 46 DePaul L. Rev. 741, 748 (1997) ("Courts have viewed racist epithets as beyond the pale, regardless of the prevalence of these epithets in the workplace."). The meaning of a racial epithet is often a critical, if not determinative, factor in establishing a hostile work environment. E.g., Rodgers, supra, 12 F. 3d at 675 (noting that the term "nigger" is an unambiguously racist epithet); Reid, supra, 1 996 WL 411494, at *4 (ruling that "it is very possible that the term `Coon-Ass' is racially derogatory or severe enough, in and of itself, to create a hostile work environment"); Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984) ("The use of the word `nigger' automatically separates the person addressed from every non-black person; this is discrimination per se. . . .); see also Rocha Vigil, supra, 119 F. 3d at 873 n.3 (Lucero, J., dissenting) (Harris, supra, "does not mean that [a] severely degrading, racially derogatory insult of the worst kind escapes actionability under Title VII simply because it is used only occasionally.").
In this case, defendant's remark had an unambiguously demeaning racial message that a rational factfinder could conclude was sufficiently severe to contribute materially to the creation of a hostile work environment. The term defendant used, "jungle bunny," is patently a racist slur, and is ugly, stark and raw in its opprobrious connotation. See Washington v. Court of Common Pleas of Phila. County, 845 F. Supp. 1107, 1110 (E.D. Pa. 1994) (recognizing that "jungle bunny" is a racist remark), rev'd on other grounds, 47 F.3d 1163 (3d Cir. 1995). In common parlance, "jungle bunny" is a racial slur directed at blacks. The Dictionary of Contemporary Slang 285 (1st Ed. 1990); Paul Beale, A Concise Dictionary of Slang and Unconventional English 244 (1st American Ed. 1989). It is a slur that, in and of itself, is capable of contaminating the workplace. Bolden v. ABF Fabricators, Inc., 864 F. Supp. 1132, 1133-34 (N.D. Ala. 1994) (referring to black people as "jungle bunnies," among other slurs, created a racist working environment); cf. Resetar v. State Bd. of Educ., 399 A.2d 225, 238 (Md.) (upholding dismissal of schoolteacher for referring to black students within earshot as "jungle bunnies" because the epithet is sufficiently vicious), cert. denied, 444 U.S. 838, 100 S. Ct. 74, 62 L. Ed.2d 49 (1979). Racial slurs are a form of vilification that harms the people at whom they are directed. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2338 (1989) ("However irrational racist speech may be, it hits right at the emotional place where we feel
the most pain."); Charles R. Lawrence III, If He Hollers Let Him
Go: Regulating Racist Speech on Campus, 1
990 Duke L.J. 431, 452
(1990) ("The experience of being called `nigger,' `spic,' `Jap,'
or `kike' is like receiving a slap in the face. The injury is
instantaneous.").
Further, the severity of the remark in this case was
exacerbated by the fact that it was uttered by a supervisor or
superior officer. Defendant was not an ordinary co-worker of
plaintiff; he was the Sheriff of Burlington County, the chief
executive of the office in which plaintiff worked. That fact
greatly magnifies the gravity of the comment.
A supervisor has a unique role in shaping the work
environment. Part of a supervisor's responsibilities is the duty
to prevent, avoid, and rectify invidious harassment in the
workplace. See Lehmann, supra, 132 N.J. at 622-23 (holding an
employer was vicariously liable for sexual harassment if it had
knowledge of the harassment but failed to stop it promptly and
effectively). An employer has a clear duty not only to take
strong and aggressive measures to prevent invidious harassment,
but also to correct and remediate promptly such conduct when it
occurs. Payton v. New Jersey Turnpike Auth.,
148 N.J. 524, 537
(1997) (holding that an employer's remedial response to
complaints of harassment is relevant to an employee's
discrimination claim); Amirmokri, supra, 60 F.
3d at 1131
(imposing liability for employer's failure to take prompt action
calculated to end ethnic harassment after becoming aware of it);
Ellison v. Brady,
924 F.2d 872, 882 (9th Cir. 1991) (requiring an
employer to end sexual harassment); Davis, supra, 858 F.
2d at 349
(shielding an employer from liability because it "took quick and
appropriate measures to remedy the situation"); Peter M. Panken
et al., Sexual Harassment in the Workplace: Employer Liability
for the Sins of the Wicked, SB36 A.L.I. - A.B.A. 203, 228 (1997)
(recognizing employers lessen liability by having an effective
and responsive complaint procedure).
Here, defendant did more than merely allow racial harassment
to occur at the workplace, he perpetrated it. That circumstance,
coupled with the stark racist meaning of the remark, immeasurably
increased its severity. In Rodgers, supra, the court noted that
"a supervisor's use of [a racial slur] impacts the work
environment far more severely than use by co-equals." 12 F.
3d at
675. In Nadeau, supra, the court concluded that a single
incident of sexual harassment by the highest-ranking employee of
the company could reasonably be found "sufficiently severe to
alter the conditions of employment and to create an abusive or
hostile work environment." 675 A.
2d at 974; see also King v.
Hillen,
21 F.3d 1572, 1580 (Fed. Cir. 1994) (noting the EEOC's
Policy Guidelines on Sexual Harassment states that "consideration
should be given to the type of conduct (verbal or physical), its
frequency, its offensiveness, the hostility of the conduct,
whether the harasser is a co-worker or a supervisor, and the
number of persons at whom the harassment was directed" (emphasis
added)); cf. In re Seaman,
133 N.J. 67, 94 (1993) (stressing that
the sexual harassment by a judge directed to his law clerk was
especially egregious because of the judge's authority and
superior position).
The Sheriff of Burlington County is a high-ranking law
enforcement officer. That fact is of significance when
evaluating the effect of his remark on a subordinate. Any remark
from such an individual carries with it the power and authority
of the office. Because the sheriff was both plaintiff's superior
and her offender, plaintiff could not seek the redress that would
otherwise be available to a victim of invidious workplace
harassment, namely, resort to her own supervisor. See Radtke,
supra, 501 N.W.
2d at 168 (stating that "because the perpetrator
of the alleged [sexual harassment] was the employer, recourse to
the employer was fruitless," and holding that "[t]he alleged
conduct, combined with the reality that the employer was the
perpetrator, permits [the] single incident to be sufficient to
reach the jury"). Indeed, plaintiff's dilemma was acute and
insoluble. She had nowhere to turn. When plaintiff did turn to
defendant, she did not receive any redress or protection
whatsoever, let alone comfort, solace or contrition. Rather, she
was rebuffed and further agitated, to the point of tears, for
taking offense to a remark that was clearly a slur against her
race.
The test of severity adopted by this Court in Lehmann does
not in all cases require evidence of an actual change in working
conditions in order for there to be a hostile work environment.
The Court in Lehmann, supra, stated: "[D]iscrimination itself is
the harm that the LAD seeks to eradicate . . . ." 132 N.J. at
610. "It is the harasser's conduct, not the plaintiff's injury,
[and 'not the alteration of the conditions of employment,' Muench
v. Township of Haddon,
255 N.J. Super. 288, 299 (App. Div. 1992)
(citation omitted),] that must be severe or pervasive." Lehmann,
supra, 132 N.J. at 610.
Severity and workplace hostility are measured by surrounding
circumstances. An offensive remark directed against a black
employee must under the circumstances be "severe or pervasive
enough to make a . . . reasonable [African American] believe that
. . . the conditions of employment are altered and the working
environment is hostile or abusive." Id. at 603-04. The comment
in context must be viewed from the perspective of a reasonable
African American situated as the plaintiff. See Torres, supra,
116 F.
3d at 632-33 (using a reasonable Puerto Rican standard for
a Puerto Rican plaintiff); Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074, 1081 (3d Cir. 1996) (stating that plaintiff must
show racial harassment "would detrimentally affect a reasonable
person of the same race in that position"); Dickerson v. State of
N.J., Dep't of Human Servs.,
767 F. Supp. 605, 616 (D.N.J. 1991)
(stating that standard is a reasonable person of plaintiff's
race).
A rational factfinder may conclude that under the
circumstances a reasonable African American could believe that,
when the chief executive of her office calls her a "jungle
bunny," he thinks she has less worth as a person and is inferior
to other employees because of her race. Moreover, a jury could
reasonably find that the reasonable African American would
believe that such a remark made in the presence of another
supervising officer portrays an attitude of prejudice that
injects hostility and abuse into the working environment and
significantly alters the conditions of her employment. See
Rodgers, supra, 12 F.
3d at 675 ("Perhaps no single act can more
quickly alter the conditions of employment and create an abusive
working environment than the use of an unambiguously racial
epithet such as `nigger' by a supervisor in the presence of his
subordinates." (citation and internal quotations omitted)).
The circumstances -- that the insult was clearly a racist
slur, that it was directed against plaintiff, that it was uttered
by the chief ranking supervisor of her employ, the Sheriff of
Burlington County, and that it was made in the presence of
another supervising officer -- were sufficient to establish the
severity of the harassment and alter the conditions of
plaintiff's work environment.
Undoubtedly, in some, perhaps most, cases, evidence that the
hostility or abuse deleteriously alters the conditions of
employment is necessary in order to establish the requisite
severity of the discrimination. See Lehmann, supra, 132 N.J. at
610. As observed by the Court in Lehmann, supra: "One cannot
inquire whether the alleged conduct was `severe or pervasive'
without knowing how severe or pervasive it must be." 132 N.J. at
604. However, despite the dissent's contention, infra at __-__
(slip op. at 3-5), evidence of specific, tangible adverse changes
in the work environment is not required in order to state a LAD
racial harassment claim. "[A] loss of a tangible job benefit is
not necessary since the harassment itself affects the terms or
conditions of employment." King v. Board of Regents of Univ. of
Wis. Sys.,
898 F.2d 533, 537 (7th Cir. 1990); see also Nadeau,
supra, 675 A.
2d at 976 (holding that a single instance of sexual
harassment may have altered the plaintiff's working conditions
although she was able to retain her job position); Radtke, supra,
501 N.W.
2d at 168 (holding that a single instance of sexual
harassment may have altered the plaintiff's working conditions
although she did not allege that there had been tangible changes
to her working environment).
Moreover, there are circumstances that indicate that the
conditions of plaintiff's employment were in fact altered by the
racist remark. Prior to January 31, 1992, plaintiff had never
been the target of racial epithets at work. But, that changed
when defendant made his remark.
The offensive remark was made in the presence of another
supervising officer. When plaintiff told her co-workers of
defendant's remark, they laughed, and one apparently mocked her.
Moreover, plaintiff had no realistic opportunity for redress.
Defendant indirectly persisted in perpetuating the harassment and
its hostile impact. When plaintiff confronted defendant about
his comment, he would not acknowledge that he had vilified her.
Instead, he badgered her for interpreting the remark as a racial
slur. He was reluctant to apologize. His first proffered letter
did not constitute a sincere apology; rather, it evaded the
patent racial import of the epithet defendant had used by falsely
stating that plaintiff had worn fatigues at the time of the
comment. Thereafter, her co-employees acted coolly toward her;
she was labeled a troublemaker. They were afraid to talk to her
and created the impression that they had been told to stay away
from her. Consequently, a rational factfinder, crediting such
evidence, may conclude that defendant's racial slur altered
plaintiff's working conditions.
"This Court has described the goal of the LAD as being
`nothing less than the eradication of the cancer of
discrimination.'" Hernandez v. Region Nine Hous. Corp.,
146 N.J. 645, 651-52 (1996) (quoting Fuchilla v. Layman,
109 N.J. 319,
334, cert. denied,
488 U.S. 826,
109 S. Ct. 75,
102 L. Ed.2d 51
(1988)). We have recognized: "No purpose is served by allowing
that harm to go unremedied merely because it was brought about by
a single, severe incident of harassment rather than by multiple
incidents of harassment." Lehmann, supra, 132 N.J. at 607.
Accordingly, we conclude plaintiff has presented adequate
evidence of the severity of defendant's remark to create a
genuine issue of material fact sufficient to survive defendant's
motion for summary judgment. A rational factfinder, crediting
plaintiff's evidence, could conclude that defendant engaged in
discriminatory harassment by uttering a racial epithet that was
sufficiently severe to have created a hostile work environment.
We reverse the order of summary judgment for defendant on the
claim of LAD racial discrimination based on workplace harassment.
Citing the insufficiency of plaintiff's allegations and evidence of any severe emotional injury, the trial court dismissed petitioner's claim for intentional infliction of emotional distress. The Appellate Division affirmed the dismissal. In addressing the issue of the adequacy of plaintiff's claim, we are again remitted to the standard governing whether the evidence, when viewed in the light most favorable to the non-moving party, is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. We also note, preliminarily, that the evidence that would be relevant to plaintiff's claim of emotional injury would overlap, if not duplicate, that proffered to establish her LAD claim. To that extent, plaintiff is precluded from obtaining a double recovery.
In Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 365-67 (1988), this Court first recognized a cause of action for intentional infliction of emotional distress. In order to state such a cause of action, "plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe." Id. at 366.
"The conduct must be `so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.'" Ibid. (quoting Restatement (Second)
of Torts, § 46 cmt. d). "`The liability clearly does not extend
to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.'" 49 Prospect St. Tenants
Ass'n v. Sheva Gardens, Inc.,
227 N.J. Super. 449, 472 (App. Div.
1988) (quoting Restatement, supra, § 46 cmt. d). A racial slur
uttered by a sheriff directed against a subordinate officer is
not, as a matter of law, a mere insult or triviality. A rational
jury could reasonably conclude that defendant's conduct was
atrocious and intolerable. See Lenoir v. Roll Coater, Inc.,
13 F.3d 1130, 1132 n.1 (7th Cir. 1994) (subjecting employee to
repeated racial and ethnic slurs was intolerable); Whelan v.
Albertson's, Inc.,
879 P.2d 888, 891 (Or. App. 1994) ("[R]acial
and ethnic slurs can be socially intolerable."). In City of
Minneapolis v. Richardson,
239 N.W.2d 197, 203 (Minn. 1976), the
Minnesota Supreme Court pronounced: "The use of the term
`nigger' has no place in the civil treatment of a citizen by a
public official." Likewise, when defendant called plaintiff a
"jungle bunny," he may have stepped beyond our civilized
community's bounds of decency. A jury should determine whether
defendant's remark was outrageous or merely an insult.
We recognize that many jurisdictions have held that a
supervisor's utterance of racial slurs toward his subordinates is
not, as a matter of law, extreme and outrageous conduct that
would give rise to an intentional infliction of emotional
distress cause of action. See, e.g., Ugalde v. W.A. McKenzie
Asphalt Co.,
990 F.2d 239, 243 (5th Cir. 1993) (holding a
supervisor repeatedly uttering epithets toward a Mexican-American
employee was not extreme and outrageous conduct and thus not
intentional infliction of emotional distress); Lay v. Roux Lab.,
Inc.,
379 So.2d 451, 452 (Fla. App. 1980) (holding a supervisor
threatening to terminate a subordinate and uttering racial
epithets was not sufficiently outrageous or atrocious to state an
intentional infliction of emotional distress claim). In Bradshaw
v. Swagerty,
563 P.2d 511, 514 (Kan. App. 1977), the court
determined that "the trial court was fully justified in regarding
the [racial] epithets complained of here as `mere insults' of the
kind which must be tolerated in our roughedged society." We
disagree. In this day and age, in this society and culture, and
in this State, an ugly, vicious racial slur uttered by a high-ranking public official, who should know better and is required
to do better, cannot, in light of this State's strong and
steadfast public policy against invidious discrimination, be
viewed as a picayune insult. That view would be blind and
impervious to the lessons of history.
[R]acial insults are in no way comparable to
statements such as, "You are a God damned
woman and a God damned liar," which the
Restatement gives as an example of a "mere
insult." Racial insults are different
qualitatively because they conjure up the
entire history of racial discrimination in
this country.
[Richard Delgado, Words that Wound: A Tort
Action for Racial Insults, Epithets, and
Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133,
157 (1982).]
"The term `nigger' is one of insult, abuse and belittlement
harking back to slavery days." Bradshaw, supra, 563 P.
2d at 514.
The term "jungle bunny" is similarly disparaging. "Racial
insults, relying as they do on the unalterable fact of the
victim's race and on the history of slavery and race
discrimination in this country, have an even greater potential
for harm than other insults." Delgado, supra, 17 Harv. C.R.-C.L.
L. Rev. at 143; see also Karins v. City of Atlantic City, __ N.J.
__, __ (1998) (slip op. at 41) (recognizing that certain words,
in the context of history, carry a message of "hatred,
persecution, and degradation of certain groups" (internal
quotations omitted)); Kent Greenawalt, Insults and Epithets: Are
They Protected Speech?,
42 Rutgers L. Rev. 287, 291-92 (1990)
("The significance of group epithets is . . . they call to mind
whatever `negative' qualities are associated with a group,
qualities such as laziness, greed, dishonesty, stupidity,
vulgarity.").See footnote 2
We do not hold that a single racial slur spoken by a stranger on the street could amount to extreme and outrageous conduct. But, a jury could reasonably conclude that the power dynamics of the workplace contribute to the extremity and the outrageousness of defendant's conduct. "[T]he employer-employee relationship has been regarded as a special relationship which is a factor to be considered in determining whether liability should be imposed." J.D. Lee & Barry A. Lindahl, 3 Modern Tort Law: Liability and Litigation § 32.03, at 133-34 (rev. ed. 1990); accord Stuart M. Speiser et al., 4 The American Law of Torts § 16.21, at 1094 (1987) ("Courts in quite a few states have considered the employer-employee relationship a significant factor in determining whether liability for the tort of infliction of intentional or reckless emotional distress."); see Alcorn v. Anbro Eng'g, Inc., 468 P.2d 216, 218 n.2 (Cal. 1970) (holding employees are entitled to greater protection from insults than strangers); White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) ("A plaintiff's status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger."); Harris v. Jones, 380 A.2d 611, 615-16 (Md. 1977) (holding employers have a higher duty than strangers to avoid
inflicting emotional distress); Hall v. May Dep't Stores Co.,
637 P.2d 126, 131 (Or. 1981) (same); cf. M.B.M. Co. v. Counce,
596 S.W.2d 681, 688 (Ark. 1980) ("[T]here are cases in which the
extreme and outrageous nature of the conduct arises not so much
from what is done as from the abuse by the defendant of a
relationship with the plaintiff which gives him power to damage
the plaintiff's interests."). "When one in a position of
authority . . . over another has allegedly made [a] racial slur[]
. . . , this abusive conduct gives added impetus to the claim of
outrageous behavior." Contreras v. Crown Zellerbach,
565 P.2d 1173, 1176 (Wash. 1977). As the Sheriff of Burlington County,
defendant was not merely plaintiff's superior -- he was the chief
executive of her office and the second highest-ranking law
enforcement official in the county. "Defendant occupied a
position of authority and power over plaintiff. . . .
[D]efendant's abuse of this relationship . . . support[s] a
finding of extreme and outrageous conduct." Wilson v. Kiss,
751 F. Supp. 1249, 1255 (E.D. Mich. 1990).
Therefore, the fact that defendant uttered only one slur
toward plaintiff does not, as a matter of law, preclude his
conduct from being extreme and outrageous. "A single event,
under the right circumstances, may be extreme and outrageous."
Id. at 1254. Defendant's conduct in this case may present those
unusual circumstances. In the presence of Undersheriff Isham,
defendant, the Sheriff of Burlington County, referred to
plaintiff, who had been a sheriff's officer for twenty years, as
a "jungle bunny." In light of the potency of racial slurs and
defendant's authority as sheriff, a jury could reasonably
determine that defendant's conduct was extreme and outrageous.
Nevertheless, defendant made only one racial slur and claims
he did not comprehend its opprobrious connotation. Notably,
defendant did not unleash a barrage of epithets toward plaintiff.
He did not repeat the slur. Despite his initial reluctance,
defendant apologized for his remark. He never threatened her
with reprisals or dismissal from her job as a sheriff's officer.
Plaintiff never lost income, and her basic job duties did not
change. Although she lost her position as floor supervisor, it
may in fact have been true that only sergeants were eligible for
that position. Based on those facts, a jury could reasonably
conclude that defendant's conduct was neither extreme nor
outrageous. But, that is not the only conclusion a rational
factfinder could reach. Because an issue of material fact exists
regarding the extremity of defendant's conduct, defendant is not
entitled to summary judgment.
Besides establishing that defendant's conduct was
outrageous, "plaintiff must prove that the defendant acted
intentionally or recklessly . . . both to do the act and to
produce emotional distress." Buckley, supra, 111 N.J. at 366.
Undoubtedly, defendant intended to say what he did in fact say:
"There's the jungle bunny." Furthermore, defendant's intent to
cause emotional distress can be inferred from his remark. "There
can be little doubt that the dignitary affront of racial insults
. . . is intentional and therefore most reprehensible." Delgado,
supra, 17 Harv. C.R.-C.L. L. Rev. at 145. Although defendant
insists he was unaware that "jungle bunny" is a slur, a rational
factfinder is free to reject that contention. See ibid. ("Most
people know today that certain words are offensive and only
calculated to wound."); Lathrope-Olson v. Oregon Dep't of Trans.,
876 P.2d 345, 347 (Or. App. 1994) ("Such overt acts of [racial
harassment] . . . are not simply rude and boorish, but are more
properly characterized as the kind of conduct that a jury could
find was intended to inflict deep, stigmatizing and psychic
wounds on another person.").
Nonetheless, the fact that most people understand that
"jungle bunny" is a racial slur does not conclusively prove that
defendant appreciated the term's meaning. After listening to
defendant's testimony, a jury could reasonably conclude that
defendant's contention is credible and sincere. Accordingly, a
jury may find that defendant did not intend to cause, or
recklessly disregard the risk that his remark would cause,
plaintiff to suffer severe emotional distress. Because
defendant's intent is a disputed issue of material fact, summary
judgment on that issue is inappropriate.
A cause of action for intentional infliction of emotional
distress also requires that "the emotional distress suffered by
the plaintiff must be `so severe that no reasonable [person]
could be expected to endure it.'" Buckley, supra, 111 N.J. at
366 (quoting Restatement, supra, § 46 cmt. j). In this case,
plaintiff's evidence indicated that she may have suffered severe
emotional distress as a result of defendant's conduct. For as
long as she could afford to do so, plaintiff regularly underwent
psychotherapy from Dr. Fox. She lived in fear that propelled her
to purchase a bullet-proof vest. She was treated for anxiety.
She suffered from mood changes and insomnia and experienced
nightmares and flashbacks of the incident, symptoms that
persisted for over two years after defendant's remark. Dr. Fox
ultimately diagnosed her as suffering post-traumatic stress
disorder.
Plaintiff's purported emotional distress differs from that
alleged by the unsuccessful plaintiffs in Buckley, supra, and
Decker v. Princeton Packet, Inc.,
116 N.J. 418, 430 (1989). In
Buckley, the plaintiff's "complaints amount[ed] to nothing more
than aggravation, embarrassment, an unspecified number of
headaches, and loss of sleep." 111 N.J. at 368. In Decker, the
plaintiff's emotional harm was similar to that suffered by the
plaintiff in Buckley. 116 N.J. at 431. In both cases, the
injury was "not sufficiently palpable, severe, or enduring."
Ibid. In contrast to Taylor, neither plaintiff sought medical
treatment for their emotional anguish or claimed to suffer harm
that was both severe and enduring.
"Severe emotional distress means any type of severe and
disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so,
including . . . posttraumatic stress disorder." Poole v.
Copland, Inc.,
481 S.E.2d 88, 93 (N.C. App. 1997) (internal
quotations omitted); accord Schnabel v. Tyler,
630 A.2d 1361,
1368-69 (Conn. App. 1993) (upholding intentional infliction of
emotional distress award for plaintiff with post-traumatic stress
disorder), aff'd,
646 A.2d 152 (Conn. 1994); Curtis v. Firth,
850 P.2d 749, 756-57 (Idaho 1993) (same); Kraszewski v. Baptist
Medical Ctr. of Okla., Inc.,
916 P.2d 241, 249 (Okla. 1996)
(finding post-traumatic stress disorder to be severe emotional
distress). Dr. Fox's diagnosis that plaintiff suffered post-traumatic stress disorder permits a rational factfinder to
conclude that she suffered severe emotional distress. On the
other hand, a jury would be free to reject plaintiff's
psychiatric evidence and conclude that she did not suffer severe
emotional distress.
Further, Taylor has submitted evidence supporting the
contention that "the defendant's actions [were] the proximate
cause of the plaintiff's emotional distress." Buckley, supra,
111 N.J. at 366. Dr. Fox determined that plaintiff's post-traumatic stress disorder was caused by defendant calling her a
"jungle bunny."See footnote 3 Once again, after reviewing the evidence, a
jury may conclude otherwise.
In addition, in order to constitute actionable intentional
infliction of emotional distress, defendant's conduct must be
sufficiently severe to "cause genuine and substantial emotional
distress or mental harm to average persons." Decker, 116 N.J. at
430. Accordingly, people cannot recover for idiosyncratic
emotional distress that would not be experienced by average
persons. See Williamson v. Waldman,
150 N.J. 232, 250 (1997)
(denying damages for emotional distress reasonable people would
not experience). This objective standard ensures that defendants
are not held liable when hypersensitive plaintiffs suffer severe
emotional trauma from conduct that would not seriously wound most
people. See Buckley, supra, 111 N.J. at 367 ("By circumscribing
the cause of action with an elevated threshold for liability and
damages, courts have authorized legitimate claims while
eliminating those that should not be compensable.").
But, in order to evaluate fairly whether plaintiff's
emotional distress was idiosyncratic, the average person must be
one similarly situated to the plaintiff. See Savage v. Old
Bridge-Sayreville Medical Group, P.A.,
134 N.J. 241, 250 (1993)
(using "reasonable person in plaintiff's position" standard in
medical malpractice case (internal quotations omitted)); Berrie
v. Toyota Motor Sales USA, Inc.,
267 N.J. Super. 152, 157 (App.
Div. 1993) (using "reasonable person in plaintiff's position"
standard in Lemon Law case); Flowers v. Bank of Am. Nat. Trust &
Sav. Ass'n,
679 P.2d 1385, 1387 (Or. App. 1984) (using
"reasonable person in plaintiff's position" standard to evaluate
an intentional infliction of emotional distress claim). Whenever
an intentional infliction of emotional distress claim arises out
of conduct that also constitutes invidious discrimination on the
basis of "race, creed, color, national origin, ancestry, age,
sex, affectional or sexual orientation, marital status, familial
status, [military service], or nationality," N.J.S.A. 10:5-3, the
average person standard must be adapted to reflect those
characteristics of the plaintiff that are the focus of the
alleged discrimination. Thus when, as here, a black plaintiff
asserts an intentional infliction of emotional distress claim
based on the harm caused by racial epithets, the inquiry becomes
whether the average African American would suffer severe
emotional distress under the circumstances.
This average African American standard is analogous to the
reasonable African American standard used in the analysis and
assessment of plaintiff's LAD claim. See supra at __ (slip op.
at 7); id. at __ (slip op. at 18). In Lehmann, supra, 132 N.J.
at 614-15, this Court explained why we employ a reasonable woman
standard for a sexual harassment LAD claim. First, the
reasonable person standard tends to be male-biased because our
society and our courts tend to view the male perspective as the
objective one. Id. at 614. Second, in most sectors of the
workforce women are a minority whose position at the workplace is
often marginal; consequently, sexual harassment can "undermine
[a] woman's self-confidence and interfere with her ability to be
perceived by others as a capable worker with the potential to
advance and succeed." Id. at 615.
Those reasons apply with equal force to plaintiff's
intentional infliction of emotional distress claim, which arises
from her allegations of racial harassment. African Americans may
respond differently to racial slurs than white people. See
Matsuda, supra,
87 Mich. L. Rev. at 2327 ("The typical reaction
of target-group members to an incident of [racial harassment] is
alarm and immediate calls for redress. The typical reaction of
non-target-group members is to consider the incidents isolated
pranks, the product of sick-but-harmless minds."); Lawrence,
supra, 1
990 Duke L.J. at 435 ("We [African Americans] often hear
racist speech when our white neighbors are not aware of its
presence."). Furthermore, because blacks, like women, represent
a minority in most sectors of the workforce, many African
Americans may feel that they have a precarious position at the
workplace that renders them especially vulnerable to emotional
distress in response to being victimized by racial slurs at work.
Thus, different racial groups can react disparately to
racial slurs. See Alcorn, supra, 468 P.
2d at 218 n.3
(recognizing that blacks are particularly susceptible to severe
emotional distress from discriminatory conduct); Contreras,
supra, 565 P.
2d at 1177 (stating that a Mexican American, by
reason of his national origin and ethnicity, was particularly
susceptible to emotional distress caused by invidious slurs).
Due to this distinction, we hold that in an intentional
infliction of emotional distress claim arising out of an
allegation of racial harassment, the plaintiff's race must shape
the objective inquiry into the severity of the distress.
Accordingly, we must decide whether, as a matter of law, the
average African American could have suffered emotional distress
as a result of defendant's remark. We determine that a rational
factfinder may find that defendant's conduct would have caused
severe emotional distress in the average African American. At
the time of the incident, plaintiff was a sheriff's officer for
Burlington County for twenty years. She was a loyal employee who
performed satisfactorily. As an African American, she was a
minority in her place of employment. She had experienced no
prejudice-related problems at work until defendant's remark.
When defendant called her a "jungle bunny," she learned what
defendant, the Sheriff of Burlington County, apparently thought
of her. He did not perceive her as a capable and loyal sheriff's
officer; instead, in his eyes she was nothing more than a "jungle
bunny." A jury could reasonably find that defendant's conduct
would have a devastating effect on the average African American.
Racial slurs, especially when used by an employee's superior
at the workplace, can wound.
Immediate mental or emotional distress is the
most obvious direct harm caused by a racial
insult. Without question, mere words,
whether racial or otherwise, can cause
mental, emotional, or even physical harm to
their target, especially if delivered in
front of others or by a person in a position
of authority.
In addition to the harms of immediate
emotional distress and infringement of
dignity, racial insults inflict psychological
harm upon the victim. Racial slurs may cause
long-term emotional pain because they draw
upon and intensify the effects of the
stigmatization, labeling, and disrespectful
treatment that the victim has previously
undergone.
[Delgado, supra, 17 Harv. C.R.-C.L.
L. Rev. at 143, 146.]
See also Matsuda,
New Jersey Law
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