On appeal from the Superior Court, Law Division, Camden County.
Michels, O'Brien and Havey. The opinion of the court was delivered by Havey, J.A.D.
In this action commenced in the Law Division under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, the central issue is whether plaintiff must prove overt sexual conduct in the work place to establish a claim of unlawful discrimination based on sexual harassment. We conclude that no such showing need be made. We hold that harassment based solely on gender, which creates a hostile and offensive work environment is sufficient to establish a prima facie case of sex discrimination under the LAD. We therefore reverse and remand for further proceedings.
The gravamen of plaintiff's complaint is that while she worked as a probationary dispatcher with the defendant Haddon Township Police Department, defendant Joseph Tortoreto, a police officer, intentionally created a hostile work environment which compelled her to resign from her position. Plaintiff claims that Tortoreto's conduct constituted an "unlawful employment practice" in that his pervasive and severe conduct violated plaintiff's "conditions . . . of employment." N.J.S.A. 10:5-12a. She also alleges that Tortoreto's conduct and defendants' failure to correct the hostile working conditions resulted in her constructive discharge, and constituted a tortious interference with her prospective economic advantage. She seeks compensatory and punitive damages for severe emotional distress, and loss of earnings and other employment benefits. At the close of plaintiff's proofs during the jury trial, the trial court granted defendants' motion to dismiss plaintiff's complaint. See R. 4:37-2(b). The court found that there was no proof adduced showing improper sexual advances, touching or sexual language, and in any event Tortoreto's conduct was not so pervasive and offensive as to constitute harassment. The
court also dismissed plaintiff's constructive discharge and tortious interference claims, concluding that this was a case involving a "volunteer resignation."
Accepting plaintiff's testimony as true, and giving her all reasonable inferences drawn from the evidence, see Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969), her proofs established the following facts. In December 1986, at age 59, plaintiff was hired as a provisional dispatcher by the Haddon Township Police Department. Officer Tortoreto was assigned to train her. Tortoreto was against hiring plaintiff simply because she was a woman. It was his view that the dispatcher's position was a job for a male seeking employment as a police officer. During plaintiff's training, Tortoreto refused to answer her questions regarding various dispatching procedures, and often told plaintiff she was doing a "lousy" job. At one point, during lunch at a diner, Tortoreto stated in the presence of plaintiff and her friends that plaintiff was "doing a lousy job. She's never going to make it." It was plaintiff's impression that Tortoreto was trying to "[g]et rid of me."
Plaintiff is a fastidious woman. Occasionally, she would clean up the department offices and Tortoreto would object, stating that plaintiff was a dispatcher, not a cleaning woman. On a "regular basis," Tortoreto would "smear" the dispatcher's window with his hands and on occasions would kiss it, leaving his lip prints. The more plaintiff objected to Tortoreto's conduct, the more "he would do it to antagonize me." During one incident, after plaintiff had left his lip prints on the window, he told plaintiff to explain to "the next nice-looking girl that comes in that they're mine." Also, at one point, after plaintiff had told Tortoreto that she was allergic to cigar smoke, she came to work one morning and found the dispatcher's area filled with cigar smoke "so much so that it set off the [fire] alarm." All of the officers, including defendant Sergeant Walter Aaron, were smoking cigars, "blowing it all around me till I was upset."
Tortoreto also made "sarcastic" and "arrogant" statements to plaintiff on the police radio which were heard by other dispatchers in the county. There were also instances where the officers used profane language "loud enough to make sure I heard," after plaintiff had complained to Tortoreto that she was offended by such language. When plaintiff called Tortoreto one evening on the radio to investigate a complaint filed by a young woman, Tortoreto asked plaintiff if she had told the woman about "my big gun," interpreted by plaintiff as being a reference to Tortoreto's genitalia. On another occasion Tortoreto reported to plaintiff that "I laid two women in one night last night" leaving plaintiff filled with "disgust."
After three months, plaintiff contacted defendant Chief of Police Robert Saunders and complained about Tortoreto's conduct. The chief referred plaintiff to Sergeant Aaron. When she did so, Sergeant Aaron simply stated: "did you tell the chief, he hired you[?]" According to plaintiff, conditions thereafter worsened, and no corrective action was taken concerning Tortoreto's conduct.
Plaintiff testified that Chief Saunders and Sergeant Aaron never advised her that her work was inadequate. In fact, after the completion of her 90-day probationary period, she received a written evaluation from Aaron stating that her job performance was "satisfactory." Nevertheless, plaintiff's probation was extended for an additional 90-days. Because plaintiff never heard of an extension of probation for other provisional employees, she requested an explanation from the chief, but received none. On April 10, 1987, plaintiff resigned from her dispatcher's position. She did so because "I tolerated all of the abuse I felt I should . . . and nothing had been done . . . about it." She testified that she was humiliated and embarrassed and had lost her self-esteem. She simply concluded "it just was not worth it." However, prior to her resignation, plaintiff had filed a complaint of unlawful discrimination on the basis of sex with the Division of Civil Rights (Division). The Division found probable cause for plaintiff's allegations, but plaintiff did not
pursue her administrative remedy. Instead, she filed the present action in the Law Division.
N.J.S.A. 10:5-12a provides:
It shall be unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, sex . . . of any individual, . . . to refuse to hire or employ or to bar or to discharge . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment . . . .
Plaintiff argues that the hostile work environment created by Tortoreto violated her "terms, conditions or privileges of employment" and therefore gave rise to a sexual discrimination claim under the LAD. Defendants counter by asserting that no action exists under the LAD because there has been no proof of sexual advances, offensive touching or other conduct of an overtly sexual nature. No reported New Jersey case has dealt squarely with the issue. Our Supreme Court in Erickson v. Marsh & McLennan Co. Inc., 117 N.J. 539, 556, 569 A.2d 793 (1990), noted that sexual harassment, which creates a "hostile environment" because of "coercion" is prohibited by the LAD. However, Erickson involved a claim that consensual sexual relations between plaintiff's supervisor and a fellow worker created a hostile environment. The Court was not called upon to decide whether nonsexual conduct can constitute an actionable claim of hostile environment under the LAD.
Nevertheless, several federal courts have addressed the issue. Our Supreme Court has not hesitated to look to federal precedent which interprets Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e to § 2000e-17, "as a key source of interpretive authority" when dealing with claims under the LAD. Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 97, 570 A.2d 903 (1990). In Meritor Sav. Bk. F.S.B. v. Vinson, 477 U.S. 57, ...