On December 9, the New Jersey Appellate Division affirmed a decision by the Civil Service Commission approving the demotion of a Middlesex County Corrections Officer from the rank of lieutenant to sergant because of his "repeated offensive remarks" to a subordinate officer "based on her sexual orientation." In the Matter of Pedro Delgado, 2010 Westlaw 4977101.
In New Jersey, discrimination on account of sexual orientation violates the state's law against discrimination, and civil rights laws of this type at the state level, following the US Supreme Court's lead in construing Title VII of the Civil Rights Act, also embrace the theory of the hostile workplace environment. Many employers, including Middlesex County, have adopted formal anti-harassment policies.
In this case, reports the court per curiam, "The administrative law judge found that Delgado violated the County's sexual harassment policy because his 'comments were insulting and demeaning and were based on a subordinate's sexual orientation.'"
On appeal, Delgado argued that the ALJ failed to make a determination on the record that his nasty and offensive comments were "unwelcome" by the subordinate. Probing the record, the court found that the ALJ had decided that Delgado was evasive on the witness stand while the complainant was credible, and she testified that she was "embarrassed and stressed by Delgado's comments," but had delayed reporting them because she was "scared, nervous and afraid of retaliation." The court concluded that in light of the testimony and credibility findings, the ALJ had "implicitly" found that the comments were "unwelcome," and that the Commission properly rejected this argument by Delgado when he sought to appeal the ALJ's ruling against his grievance. "The Commission remarked that Delgado's 'contention that the policy only covers "unwelcome conduct" is unconvincing as the comments, whether welcome or not, were offensive and inappropriate on their face."
The court rejected a variety of other arguments by Delgado, including that under the progressive discipline system, a demotion from lieutenant to sergant was excessive for this offense. The court was not sympathetic, pointing out: "Delgado was warned by a fellow lieutenant that he should modify his language in light of his rank. This warning, similar to a minor disciplinary action, should have resulted in Delgado refraining from further offensive comments. The penalty of reduction in rank was significant. Certainly the Commission had discretion to impose a lesser penalty such as a period of suspension. However, Delgado also could have received a more severe, two-step demotion, or even been terminated. In light of the seriousness of Delgado's transgressions, we do not find the penalty imposed by the Commission to be unwarranted."
One of the most frequent problems popping up in LGBT workplace discrimination cases is verbal harassment by co-workers and supervisors. This opinion provides a welcome message from the New Jersey Appellate Division that such conduct is not consistent with the commitment of the employer to a non-discriminatory workplace free of improper harassment.