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New Jersey Appellate Division Defines Standard for Hostile Environment Claim by Transgender Detainee Against Police Officers

Posted on: April 29th, 2017 by Art Leonard No Comments

The New Jersey Appellate Division rejected a municipality’s contention that the standard for determining a hostile environment for employment discrimination purposes should be the same as the standard for determining a hostile environment claim in the context of public accommodations, particularly when the accommodation at issue is the county jail and the alleged harassers are police officers dealing with a transgender arrestee. Holmes v. Jersey City Police Department, 2017 WL 1507189 (April 27, 2017).

Plaintiff Shakeem Malik Holmes, who identifies as a transgender man, was arrested for shoplifting and transported to a police station, where he contends that he was subjected to hostile treatment because of his gender identity. He was placed into a “female-only jail cell” and was “categorized as female for security purposes within the jail facilities,” but that was not the basis for this hostile treatment claim asserted under New Jersey’s Law Against Discrimination (LAD).  The LAD identifies gender identity as a prohibited ground for discrimination in places of public accommodation, and the court notes that the defendant was not contesting the assertion that the jail was a place of public accommodation subject to the statute.

Holmes’ claim rests on his allegation that “police officers made demeaning, insulting and threatening comments about his transgender status,” wrote Judge Susan L. Reisner for the Appellate Division.  “Specifically, he alleges that several officers referred to plaintiff as ‘it,’ referred to plaintiff’s situation as ‘bullshit,’ and stated ‘so that’s a fucking girl?’  He also asserts that one of the officers threatened to put his fist down plaintiff’s throat ‘like a fucking man.’”

The trial judge, relying on Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999), concluded that rude and insensitive comments “did not rise to the level of severe or pervasive LAD violations” and granted summary judgement to the defendants.

The “severe or pervasive” standard is normally applied to determine whether verbal harassment can create a hostile workplace environment for purposes of an employment discrimination case. But this case concerns treatment in a jail, not workplace harassment.

“In this case,” wrote Reisner, “the inquiry is whether plaintiff’s allegations, if true, could support a hostile environment claim under the LAD. We find that they could, and that plaintiff is therefore entitled to present his claim to a jury.  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.”

The court pointed out that the Heitzman case on which the trial judge in Hudson County relied, which apparently required a higher evidentiary standard for hostile environment workplace claims based on religion than for those based on race, “was overruled, in pertinent part, by Cutler v. Dorn, 196 N.J. 419 (2008), where the Court ‘unequivocally rejected the higher proof standard.’”

And further, she pointed out, the Appellate Division has recognized that “the prohibition of discrimination in relation to public accommodation is functionally distinct from the ban on employment discrimination” and 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.”

The court also distinguished a case involving a student being harassed by fellow students, observing that in Holmes’ case the harassment came from police officers, analogous to teachers, not from fellow inmates, who would be analogous in some sense to other students. “Here, the comments were not made by school children, or by plaintiff’s peers.  They were made by police officers, in a position of authority over plaintiff, who was their prisoner.  In those circumstances, the impact of threatening and harassing conduct may be magnified, even if it only occurs on one day.  Moreover, while a certain amount of strong language may be expected in teh confines of a police department, defendant has not suggested that its personnel have any operational need to threaten, demean or humiliate prisoners on the basis of their gender affiliation or membership in any other protected class.  In fact, such conduct may encourage other prisoners to attack the harassment victim, thus undermining the orderly operation of the police lock-up as well as the safety of the transgender prisoner.”

Thus, summary judgment in favor of the defendants should have been denied, and the case was remanded for trial on Holmes’ hostile environment claim.

Holmes is represented by Deborah L. Mains of Costello & Mains.