Schorr & Associates’ Employment Case of The Week ending September 30, 2016

Hennigan v. Merck & Co., 2016 N.J. Super. Unpub. LEXIS 2151  (N.J. Appellate Division, September 28, 2016)

This week’s Case of the Week, Hennigan v. Merck & Co., provides me with an opportunity to discuss “reverse” discrimination, a concept with which I strongly disagree.

The case itself is a “no brainer” that breaks no new legal ground.  The plaintiff, Paul Hennigan, was a programmer with Merck.  During his employment, a friendship developed with a female co-worker.  The two employees exchanged communications that were “prolific, friendly, and at times, flirtatious.”  After some time, the female co-worker asked Hennigan to stop because the communications were causing problems with her fiancé and Hennigan’s wife, who sent the female co-worker a “threatening message”.

Management became involved and warned Hennigan to stay away from the female co-worker.  The evidence presented in this opinion indicates that despite the female co-worker’s requests to be left alone, Hennigan continued to pursue her, and eventually began stalking her at home, which resulted in police involvement.  Eventually Hennigan was terminated for allegedly violating the workplace harassment policy.  He sued Merck for “reverse discrimination”, claiming that the relationship was consensual and that the employer terminated him because Merck preferred females over males.  The trial court dismissed on summary judgment, finding that there was no evidence that the female co-worker had initiated any harassing behavior after ending the friendship, but that Hennigan had.  The Appellate Division affirmed, holding that even if this were not a reverse discrimination case, it would have ruled the same way.

So what is “reverse discrimination” and how is it different than other discrimination?  Our courts have defined “reverse discrimination” as a case in which the minority or protected class discriminates against the majority or unprotected class.  In cases where there is such reverse discrimination, courts have held that in order to demonstrate a prima facie case, a plaintiff must demonstrate background circumstances to demonstrate that the defendant is an unusual employee that discriminates against the majority.  In my opinion, reverse discrimination is an outdated concept that has absolutely no place in modern jurisprudence.  Permit me to rant.

The premise behind the heightened standard for a prima facie case is that the standard elements of discrimination require first that an employee establish that he or she is a member of a protected class.  The origin of this idea is that once upon time, these laws were enacted to protect women and African-Americans (the protected classes) from discrimination from Caucasian males.  But the New Jersey Law Against Discrimination has no such distinction.  Our discrimination law protects against discrimination on the basis of “race, creed, color, national origin, ancestry, age, sex, etc.”.  There is no distinction or differentiation of “protected classes”.

The New Jersey LAD protects against discrimination against all races, all ages, all sexes.  Today, women and minorities are much more likely to have positions of corporate power.  In fact, it is now the unusual employer that does not have women and minorities in upper management.  In New Jersey, courts have even recognized that, unlike Federal courts, a plaintiff may bring action for being terminated because they were perceived as too young.  The distinction between majority and minority is simply ridiculous in most categories protected by anti-discrimination law.  There are more women than men in America, yet for discrimination purposes, women are considered a minority.  Should Christians, the majority religion in America, have less protection from discrimination than Jews?  Should Mexicans have less protection than Puerto Ricans since there are more Mexicans in America?  Of course not?

It is time to recognize that discrimination is unlawful regardless of who is discriminating and who is victimized.  The 2008 Supreme Court case of Cutler v. Dorn addressed the issue of religious harassment.  Cutler was a Jewish police officer claiming to have been harassed because of his religion.  The Appellate Division, following an earlier case, had applied a heightened standard, holding that victims of religious harassment were not entitled to the same protection as victims of sexual or racial harassment.  I was one of the attorneys acting as amicus in that case, and I argued passionately that there is no basis in law or logic to apply different levels of protection to different classes of human beings being discriminated against.

The Supreme Court agreed and overruled a line of cases that had granted religion less protection under the NJLAD.  Referring to one of the older cases, the Supreme Court stated, “If the holding in Heitzman is perceived, in application, to suggest a different, and higher, threshold for demonstrating a hostile work environment when religion-based harassment is claimed, then that misapprehension must end.”  I strongly believe that if the higher standard of reverse discrimination were brought before the New Jersey Supreme Court today, it would be properly rejected as an anachronistic relic of a different age.  Discrimination is discrimination.

Until “reverse discrimination” is eliminated from the legal lexicon, there will not be true equality under law.

Appellate Division: Judges Espinosa, Rothstadt (opinion), and Currier.