A truck driver at a New Jersey construction firm has won the right to sue his employer after being subjected to 17 months of anti-Semitic slurs, even though he is not Jewish.
Experts say the ruling, by the state Appellate Division, will expand the scope of who can sue for discrimination under the New Jersey Law Against Discrimination
The ruling significantly broadens the interpretation of the law, which typically has protected people based on their actual age, race, religion, or sexuality. It now allows anyone, not just a member of the protected class, to pursue a claim.
Myron Cowher, who is German-Irish and a Lutheran, alleged that two of his supervisors at the Carson and Roberts Construction and Engineering Company in Lafayette tormented him with bigoted remarks, including “Jew bastard” and “If you were in Germany we would burn you in the oven.”
“My argument was he doesn’t have to be Jewish in order to have suffered damages, because they perceived him to be a Jew,” said Cowher's attorney, Robert A. Scirocco of Budd Lake. “They made the workplace a hostile workplace for him.”
Cowher filed suit in December 2008 alleging a hostile work environment. But Carson and Roberts and two of Cowher’s supervisors, Jay Unangst and Nick Gingerelli, won a dismissal of his case against them before it came to trial in Sussex County Superior Court, which said Cowher was not protected by the state law against anti-Semitic discrimination because he is not Jewish.
On April 18, a three-judge panel of the state Appellate Division reversed that decision.
The appellate court said it recognized “that anti-Semitic comments are likely to affect a reasonable Jew more profoundly than a reasonable non-Jew, although we do not suggest that any reasonable person should tolerate comments of a nature as offensive as those expressed by Unangst and Gingerelli.”
“Reasonable” is a legal term often invoked in tort and liability law.
“The Appellate Division concluded he was perceived to be Jewish, and if you look at the nature of the comments, they are not something you would say to a non-Jew,” Scirocco told NJ Jewish News in an April 22 phone interview.
Frederick Polak, a counsel for Carson and Roberts, acknowledged that Cowher was a frequent recipient of anti-Semitic slurs. However, he told NJJN, Cowher also used derogatory language in the workplace.
“If you review the statement of facts, you will see the record establishes that Myron Cowher made anti-Semitic, anti-Italian, and racist statements on a continuous basis while employed at Carson and Roberts,” the lawyer said in an April 22 phone interview. “There is corroboration from either four or five people that he made those statements.”
Scirocco denied the allegation. “Polak’s witnesses are employees of the company and of course they are all going to say that,” he told NJJN.
According to Polak, neither Cowher nor any other employees were fired or disciplined because “the president of Carson and Roberts, Stan Carson, was never informed of any of the comments made by his employees. The first he learned of any of this was when the lawsuit was filed.”
At this point, the construction company has not decided whether to appeal the Appellate Division’s ruling.
Polak said Unangst is no longer employed by the trucking firm, but, he added, he “was not at liberty to say why [Unangst] was let go.”
Cowher — who now works as a truck driver for another firm — stands ready to pursue his lawsuit against Carson and Roberts.
No trial date has been set.
In response to the taunts, said Scirocco, Cowher “told them to ‘knock it off,’ but I don't remember whether he told them he was not Jewish. He felt, ‘Why do I have to tell them this? Why are they even doing this? Why do I have to explain I am not part of that group to have these hate-mongers stop doing this?’”
Mark Levenson, an attorney at Sills Cummis Gross in Newark and president-elect of the State Association of Jewish Federations, praised the appellate ruling.
“In my view, this is a decision of major significance,” he told NJJN. “The Cowher decision greatly expands the right of individuals in employment discrimination cases. Employers will no longer be able to escape liability by claiming that the aggrieved employee is not a member of a protected class.”