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Despite a yea committee vote on Thursday, a bill that would make ethnic and religious slights actionable under state discrimination law will not make it through the Legislature this session. The bill is aimed at countering an Appellate Division ruling last February that found no cause of action for a worker taunted by anti-Semitic comments. The Assembly Labor Committee voted 4-0 to pass A-4209 which would amend the Law Against Discrimination to create one. But the ruling is on appeal to the state Supreme Court, whose action could make legislation unnecessary, and the sponsor, Assemblyman Neil Cohen, D-Union, said he has been told the Senate will not act on the bill this session even if it passes the Assembly. So Cohen will take it off the table for the immediate future, redraft it to make it more plaintiff-friendly and reintroduce it when the new Legislature convenes in January. “I know there are language issues that need to be addressed,” he said before the committee vote. The bill would amend the LAD, N.J.S.A. 10:5-5, to make it unlawful for an employer “to subject an employee to a hostile work environment or to retaliate against an employee who has opposed a hostile work environment.” The term “hostile work environment” has been articulated in case law but never written into the statute. A hostile work environment would be defined as “a workplace where an employee is subjected to abusive conduct which causes physical harm or psychological harm to the employee and that is based on race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual.” The law would in turn define “abusive conduct” as “repeated verbal or physical conduct of an employee in a workplace that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” Abusive conduct would include but not be limited to repeated infliction of: � “derogatory remarks, insults, and epithets.” � “verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating.” � “gratuitous sabotage or undermining of a person’s work performance.” The bill is specifically aimed at undoing Cutler v. Dorn , 390 N.J. Super. 238 (App. Div. 2007), in which a three-judge panel reversed a Camden County jury verdict under the LAD for Haddonfield police officer Jason Cutler, who was found to have been subjected to more than a hundred anti-Semitic comments over a five-year period. The appeals judges said the comments fell into the category of “teasing” and said they must be viewed against the backdrop of the police department’s history of practical jokes, ethic humor and “chops busting,” in which Cutler himself was a participant. The panel found that the comments or pranks did not alter the conditions of Cutler’s employment: a requirement for making a finding of workplace discrimination. Cohen’s bill would alter that standard by making it necessary only that the abusive conduct be proved to have caused physical harm, defined as “the material impairment of a person’s physical health or bodily integrity,” or psychological harm, defined as “the impairment of a person’s mental health.” Among the revisions Cohen will make before re-introducing the bill are to remove the word “repeated” from the definition of abusive conduct and to add that a “reasonable person within the same protected class as the plaintiff” would find hostile, offensive, and unrelated to an employer’s legitimate business interests. The changes were urged by Christopher Lenzo, of Morristown’s Green, Savits & Lenzo, legislative director of the New Jersey chapter of the National Employment Lawyers Association. The bar group has asked for permission to participate as amicus in Cutler, which the Court last October agreed to hear. Argument has not yet been scheduled. The New Jersey Business and Industry Association was prepared to oppose the bill, but association vice president John Rogers said he would withhold his testimony until after Cohen makes his changes and the association suggests a few changes of its own.

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