Baliko v. SteckerBaliko v. Stecker
- Reporters:
- ,
- Before:
- Brochin J.A.D., Pressler, Kleiner
Defendants Joseph P. Stecker and Stephen R. Frostick are members of defendant Local 825, a union local affiliated with the International Union of Operating Engineers. Thе local had a contract dispute with George Harms Excavating Company, a corporation which is affiliated with George Harms Construction Company. The latter corporation was a general contractor for construction of a portion of Route 24. In order to influence George Harms Excavating Company, the local piсketed a construction site which George Harms Construction Company maintained near Route 24 in Morristown, New Jersey. Plaintiffs Christine Baliko, Claudia Case, and Kelly Carroll are construction workers employed by George Harms Construction Company at its Morristown construction site. They have filed this suit to recover damages from defendants as compensatiоn for defendants’ conduct on the picket line.
Plaintiffs’ complaint alleges claims for intentional infliction of emotional distress, intentional interference with contractual relations and with prospective economic advantage, and sexual harassment in violation of the New Jersey Law Against Discrimination (referred to as “LAD“),
Since we are reviewing the denial of defendants’ motion for summary judgment, we must accept plaintiffs’ descriptions of defendants’ conduct as true and give plaintiffs the benefit of all inferences from the facts that can reasonably be drawn in their favor.
During the course of their work and at the beginning and end of each workday, plaintiffs had to рass defendants’ picket line in order to go to and from the George Harms Construction Company construction site. As plaintiffs walked or drove past the picket line and through the gate at the construction site, pickets who were members of the defendant local, including defendants Stecker and Frostick, intentionally harassed the plaintiffs with sexually derоgatory gestures and exclamations.
Plaintiff Baliko accuses defendant Stecker of harassing her as she passed by making “foul, vulgar and obscene gestures,” including grabbing and pointing to his genitals and then putting his hand to his mouth as if inviting her to perform fellatio. She claims that she observed Stecker conducting himself in this way for the first time on July 5, 1990, and that he repeated this conduсt toward her on July 27, August 2, 8, 9, 10, 14, 22, and 29, September 6, 1990, and July 16, and September 11, 1991. Baliko also alleges that, on one occasion, the vice-president of Local 825 called her a “stupid son-of-a-bitch” and that on another occasion
Plaintiff Case also claims that defendant Stecker аnd other members of Local 825 abused and harassed her as she entered and exited the front gate of the Route 24 construction site. Some time shortly after June 29, 1990, a union member yelled at her, “I bet she has no muff, and if she does, it‘s very small.” Then or on another occasion, a picket called her an “ugly bitch.” On July 31, 1990, Stecker yelled to her, “Are you going to give them a blow job?,” and asked the male co-employees she was with, “How is she? She can‘t be very good because her nose is too big — it must get in the way!” On August 7, 1990, Stecker shouted, “That‘s the ugliest woman I‘ve ever seen.” Later that day, another member of Local 825 exclaimed in Case‘s presence, “That stupid cunt isn‘t saying anything. She has no balls like the rest of them.” On September 5, 1990, а member of Local 825 yelled out to Case while she was riding in the back of a work van, “That‘s where she belongs, in the back of the truck.” Later that day, while she was riding in the van to a different part of the job, another member of the local made hand gestures which were intended to refer to fellatio. On June 4, 1991, the vice-president of the local told Case, “Herе‘s Miss America. She‘s so gorgeous, you have to hold back all the guys.” On June 6, 1991, another member of the local said to Case, “Is Willie your boyfriend? Black man, white car, white wife. The All-American dream.” On June 7, 1991, the local‘s vice-president said to Case, “Here comes my woman. How would you like your million, in cash or check?” On June 10, 1991, he exclaimed in her presence, “Hеre comes my beauty queen. She‘s so gorgeous everyone wants to sexually harass her. Watch out or she may sue you.” That same day, a person whom Case did not identify, but who was presumably a picket, told her she “looked like a guy.” On June 11, 1991, Stecker exclaimed on seeing Case, “What a beautiful woman!” On June 18, 1991, the local‘s vice-president called out to Case, “What a beautiful girl,” and someone else, presumably a picket, said to her, “You are ugly!”
Plaintiffs contend that these facts, construed most strongly in their favor since we are reviewing the denial of defendants’ motion for summary judgment, show a violation of
It shall be an unlawful employment practicе, or, as the case may be, an unlawful discrimination:
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b. For a labor organization, because of the ... sex of any individual ... to discriminate in any way ... against any employer or any individual employed by an employer....
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e. For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.
Plaintiffs contend that the local has violated paragraph “b” and the individual defendants, paragraph “e.”
Lehmann v. Toys `R’ Us, Inc., 132 N.J. 587, 601-02, 626 A.2d 445 (1993), establishes sexual harassment as a form of sex discrimination that violates
Quid pro quo sexual harassment occurs when an employer attempts to make an employee‘s submission to sexual demands a condition of his or her employment. It involves an implicit or explicit threat that if the employee does not accede to the sexual demands, he or she will lose his or her job, receive unfavorable performance reviews, be passed over for promotions, or suffer other adverse employment consequences. Hostile work environment sexual harassment, by contrast, occurs when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.
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[T]he harassing conduсt need not be sexual in nature; rather, its defining characteristic is that the harassment occurs because of the victim‘s sex. See Muench v. Township of Haddon, 255 N.J. Super. 288 [605 A.2d 242] (App.Div. 1992) (holding defendant employer liable for hostile work environment sexual harassment where employees harassed dispatcher because she was female although harassment was not sexual in nature).
Plaintiffs in the present suit aсcuse defendants of hostile work environment sexual harassment. Lehmann, supra, 132 N.J. at 603-04, 626 A.2d 445, summarizes the elements of a female worker‘s claim for hostile work environment sexual harassment as follows:
[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 employee‘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 аnd the working environment is hostile or abusive.
Lehmann then goes on to elaborate on each of these elements. First of all, there is no violation of the Law Against Discrimination if the same conduct would have occurred regardless of the plaintiff‘s sex. Id. at 604, 626 A.2d 445. If in the present case, for example, the pickets were “equally crude and vulgar to all employees, regardless of their sex, no basis exists for a sex harassment claim.” Ibid. Secondly, the allegedly harassing conduct must be “severe or pervasive.” Id. at 606, 626 A.2d 445. This standard encompasses conduct of varying degrees of severity and pervasiveness. Lehmann tells us that in an extreme case, a single incident may be sufficiently severe to make the working environment illegally hostile. Id. at 606-07, 626 A.2d 445. In other cases, the requisite dеgree of hostility will have been created by “numerous incidents that, if considered individually, would be insufficiently severe to state a claim.” Id. at 607, 626 A.2d 445. Thirdly, although the amount of compensatory damages that can be recovered will depend on the proof of injury, the requirements of a cause of action are satisfied by proof of an “injury ... no more tangible оr serious than that the conditions of employment have been altered and the work environment has become abusive.”
In making that showing, the plaintiff may use evidenсe that other women in the workplace were sexually harassed. The plaintiff‘s work environment is affected not only by conduct directed at herself but also by the treatment of others. A woman‘s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers. Therefore, .. . the plaintiff need not personally have been the target of each or any instance of offensive or harassing conduct. Evidence of sexual harassment directed at other women is relevant to both the character of the work environment and its effects on the complainant.
Lastly, “[i]n evaluating whether the harassment alleged was sufficiently severe or pervasive to alter the conditions of employment and to create a hostile or intimidating work environment for a female plaintiff, the finder of fact shall consider the question from the perspective of a reasonable woman.” Id. at 611-12, 626 A.2d 445.
Lehmann is concerned with “[h]ostile work environment ... occur[ring] when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.” Plaintiffs argue that Lehmann‘s analysis is also applicable to Local 825, Stecker, and Frostick, although they are not an “employer or fellow employees” of plaintiff, because the quoted provisions of
Labor unions focus their efforts on the workplace. It is the principal arena for their activities. For example, in the present case, a trier of fact could find that Local 825 was trying to make the conditions of employment at the Morristown construction site uncomfortable in order to affect the outcome of its dispute with George Harms Excavating Company. Eliminating discrimination in employment, including the elimination of workplace
Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surеly, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.
[Meritor Savings Bank v. Vinson, supra, 477 U.S. at 67, 106 S.Ct. at 2405, 91 L.Ed.2d at 59 (emphasis added).]
The dictionary defines the term, “gauntlet,” as “a double file of men facing each other and armed with clubs or other weapons with which to strike at аn individual who is made to run between them.” Webster‘s Ninth New Collegiate Dictionary 508 (1988). The “gauntlet” to which Meritor refers is largely metaphorical. In the present case, the picket line which the plaintiffs had to cross was, according to their testimony, much more literally a “gauntlet of sexual abuse.” If Local 825 and the individual defendants were responsible for establishing and maintaining it, they have violated the prohibitions of LAD as interpreted by Lehmann. The motion court was therefore correct in declining to enter summary judgment dismissing plaintiffs’ claims against defendants based on
To prevail at trial, plaintiffs will, of course, have to prove the facts which constitute the alleged violation of
Our Supreme Court considered a similar problem in State v. Vawter, 136 N.J. 56, 642 A.2d 349 (1994). Following the United States Supreme Court‘s decision in R.A.V. v. City of St. Paul, 505 U.S. ___, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), Vawter holds that the First Amendment invalidates a statute which makes it a crime to “put another in fear of bodily violence by placing on public or private property a symbol, an object, a characterization, an appellation or graffiti that exposes another to threats of violence, contempt or hatred on the basis of race, color, creed or religion, including, but not limited to[,] a burning cross or Nazi swastika.” Vawter, supra, 136 N.J. at 62, 642 A.2d 349 (quoting
In the light of R.A.V. and Vawter, the question must be addressed whether the LAD can constitutionally be interpreted as punishing speech which is bigoted and sexually, racially, or religiously offensive, if that speech is unaccompanied by illegal, nonverbal conduct. We have not attempted to deal with the problem both because it should be considered in the light of a full factual record and because it was not fully briefed or argued by the parties. But cf. Madsen v. Women‘s Health Center, Inc., ___ U.S. ___, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (sustaining place and manner restrictions on peaceful picketing); Horizon Health Center v. Felicissimo, 135 N.J. 126, 638 A.2d 1260 (1994) (same); Murray v. Lawson, 136 N.J. 32, 642 A.2d 338 (1994) (same).
The order appealed from is affirmed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.