Susan Reisner
Susan Reisner (Carmen Natale)

Comments that might not create a hostile work environment may nonetheless violate the Law Against Discrimination in a public accommodation context, an appeals court said Thursday in a published decision reopening the case of a transgender man who says he was subjected to threats and demeaning comments by officers of the Jersey City Police Department.

The man’s lawsuit was revived by a panel of the Superior Court of New Jersey Appellate Division, which held a trial judge applied the wrong discrimination standard in the case.

The three-judge panel observed that the trial court’s dismissal was based on reasoning that would apply in cases of employment discrimination.

The case was brought by a transgender plaintiff who claims police directed threatening and demeaning comments at him after he was arrested on a shoplifting charge, which was later dismissed.

The plaintiff, Shakeem Malik Holmes, said he was subjected to the threats and demeaning comments after his arrest on shoplifting charges, and was afraid that other inmates would attack him based on officers’ comments. Holmes alleges that officers referred to him as “it,” called his situation “bullshit,” and stated, “so that’s a fucking girl?” He also asserts that an officer threatened to put his fist down the plaintiff’s throat “like a fucking man.”

Holmes was born female but has transitioned to male.

Holmes’ suit raises a “hostile environment” claim against the police department, but the trial judge below concluded the remarks did not rise to the level of severe or pervasive violations of the Law Against Discrimination, citing Heitzman v. Monmouth County, a 1999 Appellate Division case. In Heitzman, the Appellate Division upheld the dismissal of a hostile work environment suit, finding that anti-Semitic remarks made to the plaintiff by co-workers were not sufficiently severe or pervasive to create a hostile work environment.

On appeal, Judges Susan Reisner, Ellen Koblitz and Thomas Sumners Jr. said the plaintiff’s allegations, if true, could support a hostile environment claim. Heitzman held religious cases under the LAD to a higher standard than race cases, Reisner wrote. But the state Supreme Court rejected the higher standard for religious discrimination in a 2008 case, Cutler v. Dorn, Reisner wrote.

Holmes is entitled to present his case to a jury because his allegations, if true, could support a hostile environment claim under the LAD, the panel said.

“In reaching that conclusion, we consider that plaintiff, as an arrestee temporarily incarcerated in the police station, was in a uniquely vulnerable position; that the individuals making the hostile comments were police officers, who wield tremendous power over arrestees; and that the comments included a physical threat. Under all the circumstances, a jury could find that the conduct was sufficiently severe that a reasonable transgender person in plaintiff’s position would find the environment to be hostile, threatening and demeaning,” the court said.

Claims of public accommodation discrimination do not require allowances for the hierarchical qualities of the employer-employee relationship, the court said. The day-to-day nature of employment is different from words or conduct intended to discourage a potential patron’s use of a public accommodation, the court said.

The appeals court also cited a case in which a single discriminatory comment by the owner of a recreation facility was held sufficient to allow the plaintiff to survive summary judgment, and another where a single instance of racist remarks by the owner of a donut shop to a customer was sufficient to establish a prima facie case of public accommodation discrimination.

The appeals court remanded the case for a new trial on the hostile environment claim.

“I’m hoping that other folks facing the same unfortunate thing Shakeem faced are going to be able to get representation and get some help. It’s a good decision from the Appellate Division,” said Deborah Mains of Costello & Mains in Mount Laurel, who represents the plaintiff.

Stevie Chambers, assistant corporation counsel for Jersey City, who represented the police department, did not return a call about the case.