Cowher, of Dingmans Ferry, Pa., produced DVDs that appear to show supervisors Jay Unangst and Nick Gingerelli making such comments in his presence as "Only a Jew would argue over his hours" and "If you were a German, we would burn you in the oven," according to a state appeals court ruling handed down Wednesday.
The appeals court did not consider the merits of Cowher’s case, only whether he has standing to pursue it. The suit, alleging discrimination that created a hostile work environment, had been dismissed by a Superior Court judge who ruled that because Cowher was not a Jew, he could not sue.
However, the appeals court reversed the judge in its 3-0 decision, saying that if Cowher can prove the discrimination "would not have occurred but for the perception that he was Jewish," his claim is covered by the anti-discrimination law.
The "proper question" in this case, the court said, is what effect the supervisors’ allegedly derogatory comments would have on "a reasonable Jew," rather than on a person of Cowher’s actual background, which is German-Irish and Lutheran.
The law has typically been used to protect people based on their actual age, race, religion or sexuality. Judges, like the one who initially ruled on the validity of Cowher’s suit, have sometimes dismissed cases when there’s a discrepancy between the alleged remarks and a person’s actual characteristics.
The appellate decision represents an unexpectedly broad interpretation of New Jersey’s anti-discrimination law, said Montclair-based employment attorney Nancy Erika Smith, especially considering appellate judges have tended to favor employers in recent years.
"It’s become harder," Smith said. "There’s not an employment lawyer who will tell you otherwise."
Last week’s decision also echoes the arguments employment attorneys often make.
"If the Legislature sought to protect people because of age, race or religion, then surely they meant to protect people who are perceived to be these things," Smith said. "How can it be that if the discriminator is wrong, therefore they’re off the hook?"
"Anyone can pretty much bring a claim, even if they’re not a member of a protected class," he said. "It moves the focus more towards the discriminatory comments rather than the actual characteristic of the plaintiff."
The appeals court returned the case to Superior Court for a jury trial. It also upheld the dismissal of the case against a third supervisor, Gary Merkle, saying he "never uttered a discriminatory comment himself" and "at most, was ineffective in curing the conduct" of the others.
Merkle said he had received no complaints from Cowher, and that the "banter" he had overheard between Cowher and Gingerelli came from "two grown men engaging each other in lightheartedness," according to the court.
The alleged slurs occurred from January 2007 until May 2008, when Cowher left the company due to an unrelated disability, according to his attorney, Robert Scirocco.
Gingerelli, who still works for the company, and Unangst, who does not, could not be reached for comment.
Attorney Frederick Polak, who represents the construction company, wrote in a counter-statement of facts that the remarks were joking, locker-room banter.
By Stacy Jones and Ben Horowitz/The Star-Ledger