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Zalewski v. Overlook Hosp.

January 29, 1996


Menza, J.s.c.

The opinion of the court was delivered by: Menza


This is a motion for summary judgment.

The case involves the novel question of whether the New Jersey Law Against Discrimination ("LAD") (N.J.S.A. 10:5-1 through -42) applies to sexual harassment of a heterosexual by other heterosexuals in the work place when the harassment is based upon gender stereotyping. *fn1

These are the facts:

Plaintiff commenced his employment with defendant, Overlook Hospital, in 1976 when he was seventeen-years old. Five years later, he began working in defendant's Receiving Department and continued to work there until April 1995, when he was transferred to the Linen Department, where he now works.

In 1993, plaintiff's co-workers in the Receiving Department began to harass him, apparently because they believed him to be a virgin. They confronted him with the slang terms "whack'o," "jerk-off," and "3-5, 3-5," thus insinuating that the plaintiff masturbates in lieu of having sex with women. The co-workers also placed pictures with captions on plaintiff's desk and in his locker which made reference to plaintiff's lack of sexual relations with women. These pictures included a picture of a kitten with a caption that stated "the only pussy Bill has ever gotten"; a picture of a puppy with a caption which stated "I'm Billy's girl", and an altered photo which depicts plaintiff holding a Penthouse magazine, presumably looking at a naked woman, and stating "Wow! Is this what it looks like? How gross. I'll never touch anything like that. Ughhhh!" At no time did the coworkers suggest plaintiff's sexual orientation might be other than heterosexual, and there is no evidence plaintiff is homosexual or bisexual.

Plaintiff made numerous and continuous complaints regarding the harassment to his co-workers, to his immediate supervisors, and to the hospital Personnel Department. However, the harassment continued and eventually the employees of the other departments in the hospital also began to harass plaintiff about his lack of sexual relations with women.

Plaintiff has filed suit alleging a hostile environment in violation of LAD based on gender stereotyping sexual harassment.

The New Jersey LAD prohibits employment discrimination based on sex, or affectional or sexual orientation. The pertinent sections of that statute provide:

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, affectional or sexual orientation, sex...of any 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....

[(N.J.S.A. 10:5-12.)]

"Affectional or sexual orientation" is defined as follows:

"Affectional or sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation. (emphasis added)

[(N.J.S.A. 10:5-5(hh).]

Defendant now moves for summary judgment, contending that the statute is inapplicable to the facts of this case because it does not encompass the sexual harassment of heterosexuals by other heterosexuals.

The New Jersey Supreme Court in Lehmann v. Toys R Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993), set forth the test for hostile work environment sexual harassment claims:

To state a claim for hostile work environment sexual harassment, a female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. For the purposes of establishing and examining a cause of action, the test can be broken down into four prongs: the complained-of conduct (1) would not have occurred but for the employees's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. [ Id. at 603-04.]

It is clear that a reasonable jury in this case could conclude that the harassment of plaintiff, considering its pervasive nature and continuity, satisfies the second, third and fourth criteria of the Lehmann test. *fn2 The question that must be determined by this court is whether a reasonable jury could find that the first criterion of the standard has been ...

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