Gertrude W. Abramson v. William Paterson College of New Jersey

ALITO, Circuit Judge,

concurring.

I write separately to add a brief explanation of my understanding of the basis for holding that the summary judgment record is sufficient to permit the plaintiffs religious harassment claim to go to trial. Harassment is actionable under Title VII and the New Jersey Law Against Discrimination only if it is so severe or pervasive that it alters the terms or conditions of the plaintiffs employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 786 , 118 S.Ct. 2275 , 141 L.Ed.2d 662 (1998); Taylor v. Metzger, 152 N.J. 490 , 706 A.2d 685, 688-89 (1998). Offensive comments and *290 actions that do not rise to this level are insufficient. Id. This is an exacting standard, and William Paterson College argues that the evidence in this case does not meet it. The College relies on Heitzman v. Monmouth County, 321 N.J.Super. 133 , 728 A.2d 297 (App.Div.1999), in which certain anti-Semitic remarks were held not to have altered the conditions of employment, and the College maintains that “Abramson has not demonstrated conduct beyond ‘the ordinary tribulations of the workplace’ which is so extreme as to amount to a change in the terms and conditions of employment.” Appellee’s Br. at 40 (quoting Faragher, 524 U.S. at 788 , 118 S.Ct. 2275 ). The Court responds to the College’s argument by saying that “[t]he conduct in the instant case could be said to go beyond ‘simple teasing, offhand comments, and [non-serious] isolated incidents.’” Maj. Op. at 280 (quoting Faragher, 524 U.S. at 788 , 118 S.Ct. 2275 ) (brackets in majority opinion) (internal quotation marks and citations omitted in majority opinion). I agree with the Court’s statement, but I think that it is necessary to explain why the conduct alleged in this case “could be said to go beyond.... ”

The reason is that a reasonable trier of fact could infer that officials of the College intentionally pressured the plaintiff to violate the dictates of her faith in order to keep her job. As the brief of an amicus curiae observes:

When an employer deliberately reschedules important meetings for Friday afternoons, the message to an Orthodox Jewish employee is clear as a bell. Such rescheduling tells the employee that continued observance of his or her faith will be viewed as incompatible with adequate job performance. Repeated requests that work be done on Saturdays or Jewish holidays — or telephone messages left on a Jewish religious holiday demanding an ‘immediate’ response— are aimed directly at an employee’s religious observance. Criticism of an employee’s effort to reconcile his or her schedule with the observance of Jewish holidays delivers the message that the religious observer is not welcome at the place of employment. 1

Intentionally pressuring a person to choose between faith and career is more “severe” and has a more direct effect on the conditions of employment than the sort of offensive remarks at issue in Heitzman . While case law provides only limited protection for employees whose religious obligations conflict with neutral job requirements, see Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 , 110 S.Ct. 1595 , 108 L.Ed.2d 876 (1990); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 , 97 S.Ct. 2264 , 53 L.Ed.2d 113 (1977), Title VII does not permit an employer to manipulate job requirements for the purpose of putting an employee to the “cruel choice” between religion and employment. Braunfeld v. Brown, 366 U.S. 599, 616 , 81 S.Ct. 1144 , 6 L.Ed.2d 563 (1961) (Stewart, J., dissenting). It is for this reason, in my view, that the summary judgment record is sufficient to support the plaintiffs religious harassment claim.

. Brief for Amicus Curiae National Jewish Commission on Law and Public Affairs, at 4.