NJ Appellate Division Revives Transgender Arrestee’s Public Accommodation Claim Under The NJLAD

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (the “NJLAD”) prohibits discrimination in places of public accommodation. N.J.S.A. 10:5-12(f). “A place of public accommodation” is defined very broadly under the NJLAD to include all different types of public establishments. N.J.S.A. 10:5-5(l). One of the protected classifications under the NJLAD is “gender identity or expression”. N.J.S.A. 10:5-12(f). “‘Gender identity or expression’ means having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.” N.J.S.A. 10:5-5(rr).

This issue was recently addressed in the published New Jersey Appellate Division opinion of Holmes v. Jersey City Police Department, — N.J. Super. —, 2017 WL 1507189 (App. Div. Apr. 27, 2017). Plaintiff Shakim Malik Holmes alleged that after arresting him for shoplifting (the shoplifting charges were later dismissed) and transporting him to the police station, several Jersey City police officers subjected him to hostile treatment because of his transgender status in violation of the NJLAD. Id. at *1. Mr. Holmes alleged that several police officers referred to him as “it,” referred to his situation as “bullshit,” and stated “so that’s a fucking girl?” Mr. Holmes also asserted that one of the police officers threatened to put his fist down Mr. Holmes’ throat “like a fucking man.” Ibid.

The trial court dismissed Mr. Holmes’ NJLAD complaint on a summary judgment motion by the defendant police department. Holmes, 2017 WL 1507189 at *1. The trial court relied upon Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999), to conclude that “rude and insensitive comments ‘[did] not rise to the level of severe or [pervasive] LAD violations.’” Ibid. However, the New Jersey Appellate Division disagreed with that analysis and ultimately reversed the trial court and remanded Mr. Holmes’ case for a jury trial. Id. at *2.

The Appellate Division determined that Mr. Holmes’ above allegations, if proven true, could support a hostile work environment claim under the NJLAD. The court wrote:

In reaching that conclusion, we consider that plaintiff, as an arrestee temporarily incarcerated in the police station, was in a uniquely vulnerable position; that the individuals making the hostile comments were police officers, who wield tremendous power over arrestees; and that the comments included a physical threat. Under all the circumstances, a jury could find that the conduct was sufficiently severe that a reasonable transgender person in plaintiff’s position would find the environment to be hostile, threatening and demeaning.

Holmes, 2017 WL 1507189 at *2.

The Appellate Division also noted that “in the context of public accommodation discrimination, hostile comments that might not suffice to create a hostile environment in a work context may nonetheless violate the LAD.” Ibid. (citing Franek v. Tomahawk Lake Resort, 333 N.J. Super. 206 (App. Div.), certif. denied, 166 N.J. 606 (2000)). The Appellate Division also cited to Turner v. Wong, 363 N.J. Super. 186, 197-98 (App. Div. 2003), a case in which the court determined that proof that on one occasion, the proprietor of a donut shop directed racist remarks to a customer was sufficient to establish a prima facie case of public accommodation discrimination. Ibid.

The major take from this case is that the Appellate Division treats public accommodation harassment claims under the NJLAD differently than employment harassment claims. The standard for proving an actionable hostile environment in a public accommodation case appears to be lower than proving an actionable hostile work environment case. The courts certainly want to discourage public establishments from conveying insulting or humiliating words or conduct designed to discourage a potential patron’s use of that establishment.

If you believe you have been subject to discrimination or harassment, immediately contact the attorneys at The Sattiraju & Tharney, LLP in Princeton, New Jersey at (609) 722-7039 for a free consultation. We fight for justice under a myriad of anti-discrimination statutes including the NJLAD.