Myron Cowher is not Jewish.
But as a truck driver for the New Jersey-based Carson & Roberts Site Construction & Engineering Inc., he says that he was the victim of anti-Semitic slurs. "Only a Jew would argue over his hours," a supervisor told him. In an unanimous ruling on Wednesday the Appellate Division of the New Jersey Superior Court found that Cowher's discrimination suit against his former employer could proceed to trial, even though Cowher isn't Jewish.
If an employee "can demonstrate that the discrimination that he claims to have experienced would not have occurred" if he wasn't perceived to be Jewish, then the case ought to be heard, Judge Edith Payne told the court, according to The Wall Street Journal.
The ruling -- which overturned a state court's decision to dismiss the case -- broke new ground in the field of employment discrimination in the state of New Jersey, by finding that an employee's actual age, race, religion or sexuality will have less significance than how the person is perceived in the workplace, according to legal experts. In speaking to the Newark Star Ledger, Montclair, N.J.-based employment attorney Nancy Erika Smith explained the guiding logic. "How can it be that if the discriminator is wrong, therefore they're off the hook?"
"It moves the focus more towards the discriminatory comments rather than the actual characteristic of the plaintiff," Gregg Salka, an associate with the national Fisher & Phillips law firm, noted.
The Carson & Roberts Site Construction workers, supervisors Jay Unangst and Nick Gingerelli, admitted making the remarks. But they also said they were aware that Cowher wasn't Jewish. Instead, they characterized their comments as part of "a locker-room type exchange," that followed Cowher's decision to take a cut from a Super Bowl pool he helped them run. "If you were a German, we would burn you in the oven," one of the supervisors told Cowher, according to court documents as reported by the Star-Ledger. Cowher was also called "bagel meister" by some of the men. (Cowher subsequently left the company because of an unrelated disability back in 2008.)
The state trial judge had said that Cowher had failed to provide any proof that his bosses actually thought he was Jewish when they made the remarks. The Appellate Division has re-sent the case back to the lower court, saying the case must be heard by a full jury.
Once the case goes to trial, it likely will refer to the 1999 suit of Heitzman v. Monmouth County, in which a non-practicing Jew living in New Jersey said that anti-Semitic comments in the workplace created a "hostile environment." The same appellate court ruled in his favor, saying that the perception of a characteristic was all that was needed to qualify for protections, according to a blog, The Employer Handbook.
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