C v. v. Waterford Township Board of Education

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office

of the Clerk for the convenience of the reader. It has been neither reviewed nor

approved by the Court and may not summarize all portions of the opinion.

C.V. v. Waterford Township Board of Education (A-24-22) (087260)

Argued June 1, 2023 -- Decided September 12, 2023

WAINER APTER, J., writing for the Court.

The Court considers whether the Law Against Discrimination (LAD) claims

brought by C.V. and her parents were properly dismissed by the trial court. The

Appellate Division affirmed the dismissal, concluding that the LAD does not apply

“to a sexual predator’s assault of a student on a school bus where there is no

evidence his actions were based solely on the victim’s status as a member of a

protected group.” 472 N.J. Super. 581, 593 (App. Div. 2022) (emphasis added).

For five months when C.V. was a pre-kindergarten student, she was

repeatedly sexually assaulted by Alfred Dean, a 76-year-old school bus aide. C.V.’s

parents only discovered the abuse when C.V. came home without her underwear one

day. Dean was indicted and pled guilty to first-degree aggravated sexual assault.

C.V. and her parents sued the Waterford Township Board of Education and

Waterford Township School District (collectively, Waterford) alleging, among other

things, discrimination in a “place of public accommodation” “on account of . . . sex”

in violation of the LAD, N.J.S.A. 10:5-12(f). Dean admitted in his deposition that

he had sexually abused at least five children, including his own stepson, over a

period of decades. During discovery, plaintiffs submitted evidence that although

there were male and female children on the bus with C.V., Dean was only accused of

sexually assaulting other female students, not male students.

The trial judge granted summary judgment to Waterford on plaintiffs’ LAD

claim, finding that “a reasonable jury could not conclude that” any harassment

occurred “because of” C.V.’s sex. The court denied plaintiffs’ motions to amend the

complaint by adding claims for age discrimination and common law sexual

harassment and to compel production of records related to Dean’s intent. The

Appellate Division affirmed, holding that the record in this case “contained no

evidence that [Dean] acted because of [C.V.]’s gender” and instead “indicated that

his conduct was fueled by his pedophilia, and not gender discrimination.” 472 N.J.

Super. at 598. The Court granted certification. 252 N.J. 377 (2022).

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HELD: The Court reverses the Appellate Division’s judgment because it conflicts

with Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993), and L.W. v. Toms River

Regional Schools Board of Education, 189 N.J. 381 (2007). Under Lehmann, sexual

touching of areas of the body linked to sexuality happens, by definition, because of

sex. The Court affirms the denial of plaintiffs’ motions to amend their complaint

and to obtain certain records.

1. The LAD proscribes discrimination “because of” sex in employment. N.J.S.A.

10:5-12(a). In places of public accommodation, discrimination “on account of” sex

is forbidden. Id. at (f). Yet despite this difference in wording, the protections

against sex discrimination in employment and places of public accommodation are

the same. “Because of” and “on account of” both incorporate the traditional

standard of but-for causation. Under that standard, one event can have multiple but-

for causes. In the context of anti-discrimination law, that means a defendant cannot

avoid liability just by citing some other factor that contributed to its challenged

decision. If the plaintiff’s sex was one but-for cause of that decision, liability may

attach. (pp. 18-20)

2. In 1986, the Supreme Court held that “sexual harassment,” including “[u]nwelcome

. . . physical conduct of a sexual nature,” constitutes sex discrimination under Title

VII of the Civil Rights Act of 1964. Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57, 65 (1986). The Court followed in 1993, holding that “[s]exual harassment is a

form of sex discrimination that violates both Title VII and the LAD.” Lehmann, 132

N.J. at 601. In Lehmann, the Court announced a four-part test “[t]o state a claim for

hostile work environment sexual harassment,” with the first part requiring that a

plaintiff allege conduct that “would not have occurred but for the employee’s

gender.” Id. at 603-04. The Court explained that, “[w]hen the harassing conduct is

sexual or sexist in nature, the but-for element will automatically be satisfied. Thus

when a plaintiff alleges that she has been subjected to sexual touchings . . . she has

established that the harassment occurred because of her sex.” Id. at 605. (pp. 20-23)

3. In L.W., the Court adapted the Lehmann four-prong test to a school setting,

holding that to state a claim under the LAD for student-on-student hostile school

environment harassment, “an aggrieved student must allege,” for the first part,

“discriminatory conduct that would not have occurred ‘but for’ the student’s

protected characteristic,” i.e., sex, sexual orientation, gender identity or expression,

race, etc. 189 N.J. at 402-03. Underlying that holding was the “basic principle” that

sexual harassment is just as unacceptable in a school as it is in the workforce. Id. at

407. The Court explained that “a school district’s ‘first imperative must be to do no

harm to the children in its care’” and that a school board must “take reasonable

measures to assure that the teachers and administrators who stand as surrogate

parents during the day are educating, not endangering, and protecting, not

exploiting, vulnerable children.” Id. at 406. (pp. 23-26)

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4. Here, plaintiffs presented evidence that C.V. was subjected to five months of

unwanted sexual touching of her vagina. Under Lehmann, that touching was

inherently “because of” her sex. 132 N.J. at 605. And, as the Court held in

Lehmann, “[t]he LAD is not a fault- or intent-based statute.” Id. at 604. Therefore,

even if the Appellate Division were correct that Dean’s conduct was “fueled by his

pedophilia,” and not by any intent to discriminate “because of [C.V.]’s gender,” 472

N.J. Super. at 598, “the perpetrator’s intent is simply not an element of the cause of

action,” Lehmann, 132 N.J. at 605. The Appellate Division also found “no evidence

that [Dean] acted because of [C.V.]’s gender” because of “his own deposition

testimony and history of sexual abuse towards at least one boy.” 472 N.J. Super. at

598. The trial court reached the same conclusion, noting that Dean “is a compulsive

sexual abuser of children, boys and girls.” In so doing, both courts relied on Dean’s

own self-serving deposition testimony and either did not consider “the competent

evidential materials” plaintiffs presented, or failed to view them “in the light most

favorable to” plaintiffs in disregard of the standard for assessing a motion for

summary judgment. Even if Dean sexually assaulted multiple boys in the past or

had sexually touched the genitals of both girls and boys on the school bus, that

would not preclude liability for sexual harassment. It is not a defense “[f]or any

owner, . . . manager, . . . agent, or employee of any place of public accommodation,”

N.J.S.A. 10:5-12(f), to say they did not discriminate “on account of” sex because

they sexually touched the genitals of both male and female patrons or students. And

a plaintiff does not need to show that membership in a protected class was the sole

reason for the discrimination or harassment; only that it was a motivating factor.

The Court reviews additional arguments asserted by the defendants in this case and

explains why they do not compel a different outcome. (pp. 27-36)

5. The Court affirms the Appellate Division’s judgment as to plaintiffs’ motions to

amend their complaint and to obtain records of Dean’s intent. Amending plaintiffs’

complaint to add a claim of age discrimination in violation of the LAD would have

been futile because the LAD does not prohibit age discrimination in places of public

accommodation. As to plaintiffs’ request to amend their complaint to state a claim

for common law sexual harassment once any LAD sexual harassment claim was

dismissed, the Court does not reach plaintiffs’ request because dismissal of the LAD

claims was improper. Finally, given that Dean’s subjective intent is irrelevant to

plaintiffs’ sexual harassment claims under the LAD, plaintiffs’ reason for seeking

the records is now moot. (pp. 37-38)

REVERSED IN PART, AFFIRMED IN PART, and REMANDED.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON,

PIERRE-LOUIS, and FASCIALE join in JUSTICE WAINER APTER’s

opinion. JUDGE SABATINO (temporarily assigned) did not participate.

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SUPREME COURT OF NEW JERSEY

A-24 September Term 2022

087260

C.V., a minor by and through

her parents and guardians ad litem,

C.V. and R.V., and

C.V. and R.V. individually

and in their own rights,

Plaintiffs-Appellants,

v.

Waterford Township Board of

Education, Waterford Township School

District, T&L Transportation, Inc.,

Theresa Bredell, and Leslie Bredell,

Defendants-Respondents.

On certification to the Superior Court,

Appellate Division, whose opinion is reported at

472 N.J. Super. 581 (App. Div. 2022).

Argued Decided

June 1, 2023 September 12, 2023

Leo B. Dubler, III, argued the cause for appellants C.V.,

a minor, C.V., and R.V. (Law Offices of Leo B. Dubler,

III, attorneys; Leo B. Dubler, III, and Melanie C. Playo,

on the briefs).

Michael S. Mikulski, II, argued the cause for respondents

Waterford Township Board of Education and Waterford

Township School District (Connor, Weber & Oberlies,

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attorneys; Michael S. Mikulski, II, and Amelia M. Lolli,

on the brief).

Jeremy M. Feigenbaum, Solicitor General, argued the

cause for amicus curiae Attorney General of New Jersey

(Matthew J. Platkin, Attorney General, attorney; Jeremy

M. Feigenbaum, Sundeep Iyer and Mayur Saxena,

Assistant Attorneys General, of counsel, and Noemi

Schor and Melissa Fich, Deputy Attorneys General, on

the brief).

Alexander Shalom argued the cause for amicus curiae

American Civil Liberties Union of New Jersey (American

Civil Liberties Union of New Jersey Foundation,

attorneys; Alexander Shalom and Jeanne LoCicero, on

the brief).

Robert G. Devine submitted briefs on behalf of

respondent T&L Transportation, Inc. (White and

Williams, attorneys; Robert G. Devine, of counsel and on

the briefs, and Kimberly M. Collins, on the briefs).

Claudia A. Reis submitted a brief on behalf of amicus

curiae National Employment Lawyers Association of

New Jersey (Lenzo & Reis, attorneys; Claudia A. Reis, of

counsel and on the brief).

JUSTICE WAINER APTER delivered the opinion of the Court.

For five months when C.V. was a pre-kindergarten student in the

Waterford Township School District, she was repeatedly sexually assaulted by

Alfred Dean, the seventy-six-year-old bus aide who was supposed to be

ensuring her safety. C.V.’s parents only discovered the abuse when C.V. came

home without her underwear one day.

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C.V. and her parents sued the Waterford Township Board of Education

and Waterford Township School District (collectively, Waterford) alleging,

among other things, discrimination in a “place of public accommodation” “on

account of . . . sex” in violation of the New Jersey Law Against Discrimination

(LAD), N.J.S.A. 10:5-12(f).

In Lehmann v. Toys ‘R’ Us, Inc., we held that sexual harassment is a

form of sex discrimination under the LAD. We delineated a four-part test for

an employee “[t]o state a claim for hostile work environment sexual

harassment.” 132 N.J. 587, 603-04 (1993). In L.W. v. Toms River Regional

Schools Board of Education, 189 N.J. 381 (2007), we explicitly extended the

Lehmann test to claims of hostile school environment sexual harassment

brought against schools as places of public accommodation under N.J.S.A.

10:5-12(f).

The first prong of the Lehmann standard, on which this case turns,

requires the plaintiff to allege that the harassment occurred because of their

sex, or “would not have occurred but for” their sex. 132 N.J. at 603. In

Lehmann, we specifically held that this first prong will automatically be

satisfied when the plaintiff alleges sexual touching, which by nature occurs

because of a person’s sex. As we explained, “[w]hen the harassing conduct is

sexual or sexist in nature, the but-for element will automatically be satisfied.

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Thus when a plaintiff alleges that she has been subjected to sexual touchings

. . . she has established that the harassment occurred because of her sex.” Id.

at 605 (emphasis added).

Despite Lehmann and L.W., the trial court granted summary judgment in

favor of Waterford and dismissed plaintiffs’ LAD claims. The court found

plaintiffs could not, as a matter of law, prove to a jury that Dean’s conduct

occurred because of C.V.’s sex, or that it would not have occurred but for

C.V.’s sex. According to the trial court, “the but for element can’t be

satisfied . . . where you have a compulsive sexual predator, a pedophile,”

especially one who testified at his deposition “that he is a compulsive sexual

abuser of children, boys and girls.” The Appellate Division affirmed,

concluding that the LAD does not apply “to a sexual predator’s assault of a

student on a school bus where there is no evidence his actions were based

solely on the victim’s status as a member of a protected group.” C.V. v.

Waterford Twp. Bd. of Educ., 472 N.J. Super. 581, 593 (App. Div. 2022)

(emphasis added).

We reverse the Appellate Division’s judgment because it conflicts with

Lehmann and L.W. We reiterate that, under Lehmann, sexual touching of

areas of the body linked to sexuality happens, by definition, because of sex.

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We affirm the denial of plaintiffs’ motion to amend their complaint and

to obtain certain records, and we remand for further proceedings consistent

with this opinion.

I.

A.

C.V. was in pre-kindergarten in the Waterford Township School District

during the 2009-2010 school year. She rode a small bus to school. Waterford

contracted with T&L Transportation, Inc. to provide bussing. David

McDonnell was C.V.’s bus driver, and Alfred Dean was assigned as the bus

aide. Waterford required that an aide be present on the bus to assist with child

safety, among other things. Both McDonnell and Dean were T&L employees.

C.V.’s parents, C.V. and R.V., first realized something was wrong when

C.V. came home from school in April 2010 without her underwear. When her

parents asked her what happened, C.V. told them that Dean “took her

underwear . . . because she had peed on the bus.” When asked whether anyone

touched her, C.V. eventually disclosed that Dean “stuck his fingers in her

vagina and . . . told her not to tell her mommy or the police.”

In a statement to the Camden County Prosecutor’s Office (CCPO) in

April 2010, C.V. stated that Dean “sticked his fingers in [her] vagina” and

“sticked his fingers in [her] butt too” when she was on the school bus. She

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said that Dean would say “abracadabra” and do “magic” and play “game[s]” in

which he would pull down her underwear and digitally penetrate her vagina.

C.V. made similar statements to Dr. Martin Finkel, Medical Director of the

Child Abuse Research Education & Service Institute. She also told Dr. Finkel

that “I was trying to take his finger off me but he wouldn’t let me.”

Dean admitted to the CCPO that he sexually assaulted C.V. during

multiple bus rides between December 2009 and April 2010. He agreed that he

covered the bus’s video camera with a piece of paper and then rubbed C.V.’s

thighs, vagina, and buttocks. He also admitted to putting his hands inside

C.V.’s underwear and on her vagina.

David McDonnell was also questioned by the CCPO. He admitted that

he knew that Dean both (1) covered the bus’s video camera; and (2) removed

the booster seats that were required to be on the bus, instead having the

preschool children sit directly on the bus seats or on Dean’s lap.

Dean was indicted and pled guilty to first-degree aggravated sexual

assault. In preparation for sentencing, he was evaluated by the Adult

Diagnostic and Treatment Center in Avenel (Avenel) and determined to be a

“repetitive and compulsive” sex offender who “by his own

admission . . . molested other children.” Dean was sentenced to ten years’

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imprisonment at Avenel, subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2.

B.

In May 2014, C.V., by and through her parents and guardians ad litem,

C.V. and R.V., and C.V. and R.V. individually and in their own rights

(collectively, plaintiffs), sued Waterford, T&L Transportation, Inc. and T&L

principals Leslie and Theresa Bredell (collectively, T&L), and others

(collectively, defendants). The complaint alleged negligence against

Waterford and T&L (count one), sex discrimination in violation of the LAD

against Waterford (count two), and sex discrimination in violation of the LAD

against T&L (count three).

During his deposition in this case, Dean admitted that he had sexually

abused at least five children, including his own stepson, over a period of

decades. He stated it was “like a disease or something,” “something that goes

in your mind that . . . you can’t control.” In response to the question, “[h]ad it

been a while since you had touched a child before you were on the T&L bus?”

Dean said, “26 years or something like that.”

Dean also admitted that even though the preschool children were

required to sit in car seats on the bus, he took the car seats off the bus and put

them in his shed. And he agreed that C.V.’s underwear was found in his van.

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However, Dean testified that he never touched C.V.’s vagina and was “being

accused of something I didn’t even do.” “[S]ome day,” he insisted, “it’ll come

out that I never did it.” Dean also stated that he was being honest about the

children he had previously assaulted in the same way that he was being honest

about never having touched C.V.

During discovery, plaintiffs submitted evidence that although there were

male and female children on the bus with C.V. during the 2009-2010 school

year, Dean was only accused of sexually assaulting other female students, not

male students.

First, plaintiffs cited an arbitral award against Waterford finding that

Dean sexually assaulted J.D., a four-year-old girl on C.V.’s school bus. The

award specifically found that Dean played “games” with the children he

abused, brought them stuffed animals, and digitally penetrated J.D.’s vagina

and rectum. Second, plaintiffs offered C.V.’s 2017 forensic psychiatric

evaluation report. In the report, the psychiatrist, Dr. Mala Gupta, concluded

that another girl, “Lauren,” was also sexually abused by Dean on the school

bus and C.V. had likely witnessed that abuse. Third, plaintiffs pointed to

McDonnell’s interview with the CCPO before he died in 2011. During the

interview, McDonnell stated that Dean would regularly “play magic wands”

with multiple girls on the bus. When the CCPO investigator asked, “Did he

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play abracadabra with any of the boys?” McDonnell responded, “I don’t think

so.” Fourth, plaintiffs cited a court order granting the motion of minor female

plaintiff G.G. and her parents to consolidate, for good cause shown and for

purposes of discovery, their case against T&L and Waterford with this case.

Plaintiffs moved for partial summary judgment on liability on their LAD

claims against Waterford and T&L (counts two and three). T&L cross-moved

for partial summary judgment dismissing plaintiffs’ LAD claim against them

(count three).

The trial court held oral argument in 2017, denied plaintiffs’ motion for

summary judgment, and granted T&L’s cross motion for summary judgment

dismissing plaintiffs’ LAD claim. The trial judge explained that she did “not

find that the evidence in this case supports that this is an LAD case for a

number of reasons.” First, “[t]he but for element can’t be satisfied . . . where

you have a compulsive sexual predator, a pedophile.” Second, the court did

not agree “the LAD was intended to be stretched in this kind of situation.” As

the judge reasoned: “It’s the Law Against Discrimination. There is no

discrimination. He would abuse any child that -- you know, on that school

bus. Unfortunately, for C.V., it was her.”

Waterford then moved for partial summary judgment on plaintiffs’ LAD

claim against them (count two), and plaintiffs moved for reconsideration of the

9

court’s decision granting summary judgment to T&L on count three. Plaintiffs

also moved to amend their complaint to add claims of age discrimination in

violation of the LAD and common law sexual harassment.

The judge denied plaintiffs’ motion for reconsideration and granted

summary judgment to Waterford on count two, reiterating that she did “not

find that the facts in this case fall within the LAD.” The trial court

distinguished both Lehmann and L.W. because “there is no evidence here that

[Dean] was engaging in the sexual abuse because of [C.V.] being a female.

He . . . indicated [in his deposition] that he is a compulsive sexual abuser of

children, boys and girls.” (emphasis added). Therefore, “a reasonable jury

could not conclude that” any harassment occurred “because of” C.V.’s sex.

The judge initially noted that she did not “see that, in this situation, the

school bus is a [place of] public accommodation.” However, the judge then

agreed with defense counsel that “the essence of the ruling has nothing to do

with whether or not a school bus is a place of public accommodation.”

As to plaintiffs’ motion to amend their complaint to include a claim for

age discrimination under the LAD, the court found that any such amendment

would be “futile,” explaining “I just don’t find that this is an LAD case.” The

court also concluded that allowing plaintiffs to amend their complaint to add a

common law sexual harassment claim would be futile because any “common

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law claim was supplanted or subsumed by the LAD,” and once the LAD claim

“is dismissed, so, too” is any claim for common law sexual harassment.

“Otherwise, every time an LAD count is dismissed, plaintiff would file nearly

identical common law counts, and essentially, have a second bite at the apple.”

Because the trial court granted summary judgment on counts two and

three in part based on its finding that Dean was a compulsive pedophile who

did not intend to discriminate against C.V. because of her sex, plaintiffs moved

to compel production of records related to Dean’s intent from Avenel and the

CCPO. The trial court orally denied both motions, finding Dean’s records

would be “irrelevant” “because it is undisputed that [Dean] pled guilty to

sexually assaulting C.V. on the bus.”

In June 2018, plaintiffs settled all claims against T&L except the LAD

and common law sexual harassment claims, preserving their right to appeal

those claims. In September 2020, plaintiffs entered into a similar agreement

with Waterford, preserving their right to appeal the LAD claim.

C.

The Appellate Division affirmed, holding that the LAD does not apply

“to claims arising from a sexual predator’s criminal assaults against a young

schoolgirl . . . especially where, as here, there was no evidence that the

predator’s . . . behavior was the result of any proven intention to discriminate

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specifically against young women.” C.V., 472 N.J. Super. at 584. The

Appellate Division clarified that it was not holding “that sexual assault on a

school bus can never be” actionable under the LAD. Id. at 593. Rather, it held

that the record in this case “contained no evidence that [Dean] acted because

of [C.V.]’s gender. On the contrary, [Dean’s] own deposition testimony and

history of sexual abuse towards at least one boy and other girls, indicated that

his conduct was fueled by his pedophilia, and not gender discrimination .” Id.

at 598.

The Appellate Division acknowledged Lehmann’s holding that “when a

plaintiff alleges that she has been subjected to sexual touchings . . . she has

established that the harassment occurred because of her sex.” Id. at 599

(quoting Lehmann, 132 N.J. at 605). However, it held that “[i]n this case, the

presumption of harassment simply cannot apply, especially in light of the

undisputed fact that [Dean]’s actions were the result of his pedophilia directed

to all children.” Ibid. (emphasis added).

The court agreed with plaintiffs “that a school bus is ‘a place of public

accommodation’” under the LAD, “and that [an] LAD claim may be based on

conduct that violates other statutes, including our criminal statutes ,” but it did

not find either dispositive in this case. Id. at 597 (quoting L.W., 189 N.J. at

401). The court did not address plaintiffs’ motion to add an age discrimination

12

claim or common law sexual harassment claim, concluding that any remaining

arguments “were either now moot, barred under the parties’ settlement

agreement, not properly raised before the motion judge, or without sufficient

merit to warrant discussion in a written opinion.” Id. at 599.

D.

We granted plaintiffs’ petition for certification. 252 N.J. 377 (2022).

We also granted leave to participate as amici curiae to the Attorney General;

the National Employment Lawyers Association of New Jersey (NELA); and

the American Civil Liberties Union of New Jersey (ACLU).

Plaintiffs settled their remaining claims against T&L before we heard

oral argument.

II.

Plaintiffs argue that the Appellate Division made two essential errors.

First, it “overturned Lehmann by finding that sexual touching does not

automatically satisfy the ‘but for’ element” of an LAD claim for sexual

harassment. Second, it erred in holding that “months of sexual touching to a

victim’s female-only anatomy is not even evidence” that harassment occurred

“because of” the victim’s sex for purposes of surviving a motion for summary

judgment. Both conclusions, plaintiffs assert, “set[] the Lehmann standard on

its head,” are “contrary to the intent of [the] LAD,” and “make[] no sense.”

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Plaintiffs also maintain that the Appellate Division erred in failing to address

their motions (1) to amend their complaint to include an age discrimination

claim under the LAD and a claim for common law sexual harassment; and

(2) to compel discovery of evidence from Avenel and the CCPO related to

Dean’s intent in abusing C.V.

All amici support plaintiffs. The Attorney General argues that

Lehmann’s rule that sexual touching automatically satisfies the requirement

that harassment occur “because of” sex is correct because “[w]henever a

harasser engages in sexual touching of any other person’s genitals or other sex-

specific anatomy, that harassing conduct targets aspects of a victim’s anatomy

that are inextricably linked to their sex and, in that respect, is necessarily

‘because of’ sex.” The Appellate Division’s rule that “if a harasser has

sexually abused at least one girl and one boy” in the past, “the victims’ LAD

claims” will inevitably fail, the Attorney General maintains, “is akin to stating

a supervisor who repeatedly sexually abused female employees could not face

LAD liability because he had once sexually molested a single male, decades

before, outside of work.” The Attorney General also contends that the

Appellate Division’s holding contravenes Division on Civil Rights (DCR)

regulations that define “sexual harassment” to “automatically encompass[] all

‘physical conduct of a sexual nature.’” (quoting N.J.A.C. 13:69K-1.2).

14

NELA also relies on DCR’s LAD-implementing regulations, and

contends that under Lehmann, “[i]t is only when the harassment is not

obviously sex-based that the victim must also establish that the complained-of

conduct occurred ‘because of sex.’” (quoting Lehmann, 132 N.J. at 605).

NELA posits that when the harassing conduct is “facially sex-based such as

sexual touching” or “overtly sexual,” the “because of sex” prong is

automatically satisfied. The Appellate Division’s contrary holding, NELA

urges, turns thirty-years of “precedent on its head.” Moreover, whether any

harasser “acted out of some self-described purported compulsion” is irrelevant

because the LAD is not “‘a fault- or intent-based statute,’” NELA asserts.

(quoting Lehmann, 132 N.J. at 604).

The ACLU maintains that this is a case about stare decisis: Lehmann

created a per se rule that sexual touching automatically satisfies the “but for”

prong of a sexual harassment claim, and the Appellate Division rejected that

holding by improperly characterizing Lehmann’s categorical rule as a

“presumption” that it was free to reject.

Waterford defends the Appellate Division’s decision, which, it insists,

did not overturn Lehmann. According to Waterford, plaintiffs’ position boils

down to the assertion that “any sexual molestation perpetrated by an adult of a

child in a place of public accommodation is a per se violation of the NJLAD.”

15

(emphasis omitted). The LAD does “not identify sexual molestation as a per

se example of discrimination” (emphasis omitted), Waterford explains,

“despite enumerating no less than fifteen categories of” discrimination,

including discrimination based on race, national origin, sex, gender identity or

expression, sexual orientation, etc. See N.J.S.A. 10:5-12. If the Legislature

had intended “all (child) sexual abuse claims to fall under the” LAD,

Waterford reasons, “it would have specifically enumerated same as a cause of

action.” Because there is “no legal precedent for extending the NJLAD to acts

of child sexual abuse committed by an adult,” Waterford asserts, the judgment

of the Appellate Division must be affirmed.

III.

A.

We review decisions granting summary judgment de novo. Samolyk v.

Berthe, 251 N.J. 73, 78 (2022). A grant of summary judgment is appropriate if

“there is no genuine issue as to any material fact” and the moving party is

entitled to judgment “as a matter of law.” R. 4:46-2(c). We therefore “must

‘consider whether the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non -

moving party.’” Samolyk, 251 N.J. at 78 (quoting Brill v. Guardian Life Ins.

16

Co. of Am., 142 N.J. 520, 540 (1995)). In ruling on a summary judgment

motion, a court does not “weigh the evidence and determine the truth of the

matter”; it only “determine[s] whether there is a genuine issue for trial.” Rios

v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540).

Summary judgment is appropriate only when “the evidence ‘is so one-sided

that [the moving] party must prevail as a matter of law.’” Ibid. (quoting Petro-

Lubricant Testing Labs, Inc. v. Adelman, 233 N.J. 236, 257 (2018)).

We review questions of statutory interpretation de novo as well. W.S. v.

Hildreth, 252 N.J. 506, 518 (2023). In construing statutes, “[t]he overriding

goal is to determine as best we can the intent of the Legislature, and to give

effect to that intent.” State v. Hudson, 209 N.J. 513, 529 (2012). “There is no

more persuasive evidence of legislative intent than the words by which the

Legislature undertook to express its purpose,” and we thus “first look to the

plain language of the statute.” Perez v. Zagami, LLC, 218 N.J. 202, 209-10

(2014).

Under Rule 4:9-1, motions for leave to amend a complaint must “be

granted liberally,” but the decision is left to the trial “court’s sound

discretion.” Kernan v. One Wash. Park Urb. Renewal Assocs., 154 N.J. 437,

456-57 (1998). When a party moves to amend a complaint after the time to

amend as-of-right has passed, the court’s “exercise of discretion requires a

17

two-step process: whether the non-moving party will be prejudiced, and

whether granting the amendment would . . . be futile.” Notte v. Merchs Mut.

Ins. Co., 185 N.J. 490, 501 (2006). Granting an amendment would be futile,

and leave to amend properly denied, “when the newly asserted claim is not

sustainable as a matter of law. In other words, there is no point to permitting

the filing of an amended pleading when a subsequent motion to dismiss must

be granted.” Ibid.

B.

1.

The New Jersey Law Against Discrimination was enacted in 1945. “Its

purpose is ‘nothing less than the eradication “of the cancer of

discrimination.”’” Lehmann, 132 N.J. at 600 (quoting Fuchilla v. Layman,

109 N.J. 319, 334 (1988)).

In the LAD, the Legislature announced “that practices of discrimination

against any [New Jersey] inhabitants, because of . . . sex . . . are matters of

concern to the government of the State, and that such discrimination threatens

not only the rights and proper privileges of the inhabitants of the State but

menaces the institutions and foundation of a free democratic State.” N.J.S.A.

10:5-3. The Legislature also explicitly found that “because of discrimination,

people suffer personal hardships, and the State suffers a grievous harm.” Ibid.

18

It therefore provided: “All persons shall have the opportunity to obtain

employment, and to obtain all the accommodations, advantages, facilities, and

privileges of any place of public accommodation . . . without discrimination

because of . . . sex.” N.J.S.A. 10:5-4. The Legislature specifically

“recognized” and “declared” that “opportunity . . . to be a civil right.” Ibid.

The LAD makes it “unlawful” for an employer to discriminate against

any “individual in . . . [the] terms, conditions or privileges of employment,”

“because of . . . sex.” N.J.S.A. 10:5-12(a). It also makes it “unlawful” “[f]or

any owner . . . manager, . . . agent, or employee of any place of public

accommodation” to “discriminate against any person in the furnishing” of any

of the “accommodations, advantages, facilities or privileges” of “any place of

public accommodation” in this state “on account of . . . sex.” Id. at (f). A

place of public accommodation includes “any kindergarten, primary and

secondary school.” N.J.S.A. 10:5-5(l).

As quoted, the LAD proscribes discrimination “because of” sex in

employment. N.J.S.A. 10:5-12(a). In places of public accommodation,

discrimination “on account of” sex is forbidden. Id. at (f). Yet despite this

difference in wording, the protections against sex discrimination in

employment and places of public accommodation are the same because “the

ordinary meaning” of the phrase “‘because of’ is . . . ‘on account of.’”

19

Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731, 1739 (2020)

(emphasis added) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 350 (2013)) (interpreting a provision of Title VII of the Civil Rights Act

of 1964).

“Because of” and “on account of” both incorporate the “‘traditional’

standard of but-for causation.” Ibid. (citing Nassar, 570 U.S. at 346). Under

that standard, one event can have multiple but-for causes. In the context of

anti-discrimination law, that means “a defendant cannot avoid liability just b y

citing some other factor that contributed to its challenged . . . decision. So

long as the plaintiff’s sex was one but-for cause of that decision,” liability may

attach. Ibid.

2.

The text and legislative history of the LAD are “silent on the subject of

sexual harassment.” Lehmann, 132 N.J. at 600; see also N.J.S.A. 10:5-12.

The same is true for Title VII of the Civil Rights Act of 1964. See Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-64 (1986); 42 U.S.C. § 2000e-2.

In 1986, the Supreme Court adopted the Equal Employment Opportunity

Commission’s position that “sexual harassment,” including

“[u]nwelcome . . . physical conduct of a sexual nature,” constitutes sex

discrimination under Title VII. Meritor, 477 U.S. at 65 (alteration in original)

20

(quoting 29 C.F.R. § 1604.11(a) (1985)). We followed in 1993, holding that

“[s]exual harassment is a form of sex discrimination that violates both Title

VII and the LAD.” Lehmann, 132 N.J. at 601.

That holding is grounded in the recognition that workplace sexual

harassment constitutes “discriminat[ion] . . . because of . . . sex” in the “terms,

conditions, or privileges of employment.” Meritor, 477 U.S. at 63-66 (quoting

42 U.S.C. § 2000e-2(a)(1)). Similarly, sexual harassment in a place of public

accommodation constitutes discrimination “on account of . . . sex” “in the

furnishing” of “any of the accommodations, advantages, facilities or

privileges” of “any place of public accommodation.” N.J.S.A. 10:5-12(f); see

also L.W., 189 N.J. at 401.

In Lehmann, we recognized two types of actionable sexual harassment:

(1) “[q]uid pro quo sexual harassment,” “when an employer attempts to make

an employee’s submission to sexual demands a condition of . . . employment”;

and (2) “[h]ostile work environment sexual harassment,” “when an employer

or fellow employees harass an employee because of . . . sex to the point at

which the working environment becomes hostile.” 123 N.J. at 601. We then

announced a four-part test “[t]o state a claim for hostile work environment

sexual harassment”: a plaintiff must allege conduct that “(1) would not have

occurred but for the employee’s gender”; and that “was (2) severe or pervasive

21

enough to make a (3) reasonable woman believe that (4) the conditions of

employment are altered and the working environment is hostile or abusive.”

Id. at 603-04.1

On the first prong, whether the conduct occurred because of sex, or

“would not have occurred but for the employee’s gender,” we elaborated:

“When the harassing conduct is sexual or sexist in nature, the but-for element

will automatically be satisfied. Thus when a plaintiff alleges that she has been

subjected to sexual touchings . . . she has established that the harassment

occurred because of her sex.” Id. at 605 (emphasis added). On the other hand,

“[w]hen the form of the harassment is not obviously based on the victim’s

1

Although we framed the test in terms of what a woman must allege, we explicitly

acknowledged that “[t]he LAD protects both men and women and bars both

heterosexual and homosexual harassment.” Id. at 604. The reasonable person

perspective in prong three, we held, must be both “objective and gender[]

specific.” Id. at 612.

After our decision in Lehmann, the LAD was explicitly amended to prohibit

discrimination not only because of sex, but also because of “affectional or sexual

orientation” and “gender identity or expression.” See, e.g., N.J.S.A. 10:5-12(a) &

(f). It therefore prohibited discrimination and harassment against transgender, non-

binary, and gender nonconforming people long before the United States Supreme

Court’s decision in Bostock.

Though our decision in Lehmann used the words “sex” and “gender”

interchangeably, we recognize that biological sex and gender identity and

expression are distinct. We use the word “sex” in this opinion because C.V. claims

she was subjected to sexual harassment, or discrimination “on account of . . . sex”

in violation of N.J.S.A. 10:5-12(f).

22

sex,” such as, for example, stealing case files or vandalizing personal property,

“the victim must make a prima facie showing that the harassment occurred

because of her sex.” Ibid. (emphasis added). Because the plaintiff in

Lehmann had alleged “sexual comments and touchings,” we held she satisfied

the requirement “that the conduct occurred because of her sex.” Id. at 606.

We first confronted sexual harassment in a school setting in L.W.

Beginning in fourth grade, L.W. was subjected to frequent verbal harassment

by classmates based on his perceived sexual orientation. 189 N.J. at 390. In

seventh grade, three students approached L.W., calling him “gay” and

“faggot,” then grabbed his “private area” and “humped” him while yelling “Do

you like it?” Id. at 392. L.W. was also physically assaulted and attacked by

students. Id. at 392-96. L.W.’s mother filed a complaint on his behalf with

the Division on Civil Rights, alleging that L.W. was repeatedly subjected to

harassment by his peers based on his perceived sexual orientation, and that the

school district’s failure to take effective remedial action violated the LAD. Id.

at 397.

After a hearing, an Administrative Law Judge (ALJ) held that a “cause

of action against a school district for student-on-student sexual harassment was

not cognizable under the LAD.” Ibid. In the alternative, the ALJ concluded

that if the LAD did allow for such a claim, it should be governed by the

23

standards that applied to claims brought under Title IX of the Education

Amendments of 1972 (Title IX), which prohibits sex discrimination in schools

that receive federal funding. See ibid.; 20 U.S.C. § 1681(a). The United

States Supreme Court had previously interpreted Title IX to allow a private

right of action against a school board for “student-on-student sexual

harassment” “only where the [school] acts with deliberate indifference to

known acts of harassment.” L.W., 189 N.J. at 397 (quoting Davis v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999)); see also id. at 404. The ALJ

explicitly refused to apply Lehmann’s standard for hostile-work-environment

sexual harassment claims under the LAD. Id. at 397.

The Director of the Division on Civil Rights rejected the ALJ’s decision.

The Director concluded that the LAD does recognize a claim of hostile school

environment harassment against a school district. The Director also decided

that such a claim should be governed by standards “similar to those

established . . . in Lehmann,” not Title IX’s deliberate indifference standard.

Ibid. (omission in original).

We affirmed the Director’s decision. Adapting the Lehmann four-prong

test to a school setting rather than a workplace, we held that to state a claim

under the LAD for student-on-student hostile school environment harassment,

“an aggrieved student must allege”: (1) “discriminatory conduct that would

24

not have occurred ‘but for’ the student’s protected characteristic,” i.e., sex,

sexual orientation, gender identity or expression, race, etc.; (2) “that a

reasonable student of the same age, maturity level, and protected characteristic

would” (3) “consider sufficiently severe or pervasive enough” (4) “to create an

intimidating, hostile, or offensive school environment,” and (5) “that the

school district failed to reasonably address such conduct.” Id. at 402-03.

In concluding “that the Lehmann standard should apply in the workplace

and in the school setting,” we explicitly “reject[ed] the Title IX deliberate

indifference standard” adopted by the United States Supreme Court. Id. at

405. We did so because we determined that “as a matter of state law it would

be unfair to apply a more onerous burden on aggrieved students than on

aggrieved employees” -- “[s]tudents in the classroom are entitled to no less

protection from unlawful discrimination and harassment than their adult

counterparts in the workplace.” Id. at 406 (citations omitted); see also

Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008)

(reaffirming that the Lehmann standard applies to sexual harassment claims

outside the employment context, including in a university setting).

Underlying that holding was the “basic principle” that sexual harassment

is just as unacceptable in a school as it is in the workforce. L.W., 189 N.J. at

407. As we explained, “a school district’s ‘first imperative must be to do no

25

harm to the children in its care.’” Id. at 406 (quoting Frugis v. Bracigliano,

177 N.J. 250, 268 (2003)). A school board must therefore “take reasonable

measures to assure that the teachers and administrators who stand as surrogate

parents during the day are educating, not endangering, and protecting, not

exploiting, vulnerable children.” Ibid. (quoting Frugis, 177 N.J. at 268).

However, we also recognized that when considering a school district’s or

employer’s liability for harassment, student-on-student sexual harassment

differs from supervisory sexual harassment in the workplace. We therefore

held that a school district may only “be found liable under the LAD for

student-on-student . . . harassment . . . when the school district knew or should

have known of the harassment, but failed to take action reasonably calculated”

to stop it. Id. at 407. That is similar to the standard of employer liability for

co-worker harassment, rather than supervisory harassment, in the workplace.

See, e.g., Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104

(3d Cir. 2009) (holding that, under Title VII, “employer liability for co-worker

harassment exists only if . . . the employer knew or should have known of the

harassment and failed to take prompt and appropriate remedial action”).

26

IV.

A.

The Appellate Division’s decision affirming the dismissal of counts two

and three of plaintiffs’ complaint conflicts with Lehmann and L.W. We

therefore reverse that portion of the judgment.

As earlier noted, in Lehmann we explicitly held that “[w]hen the

harassing conduct is sexual . . . in nature,” the first prong of a claim for

hostile-environment sexual harassment, which asks whether the harassing

conduct occurred because of sex, or “would not have occurred but for” the

person’s sex, “will automatically be satisfied.” 132 N.J. at 605 (emphasis

added). We made clear that “when a plaintiff alleges that she has been

subjected to sexual touchings . . . she has established that the harassment

occurred because of her sex.” Ibid.

For good reason. Sexual touching of a person’s genitals or other sex-

specific anatomy is inescapably “because of” that person’s sex. As the

Attorney General correctly notes, “[w]henever a harasser engages in sexual

touching of any other person’s genitals or other sex-specific anatomy, that

harassing conduct targets aspects of a victim’s anatomy that are inextricably

linked to their sex and, in that respect, is necessarily ‘because of’ sex.”

27

It is therefore unsurprising that other courts have likewise held that

sexual touching of a person’s genitals or areas of the body linked to sexuality

is “because of” sex. See, e.g., Rene v. MGM Grand Hotel, Inc., 305 F.3d

1061, 1065-66 (9th Cir. 2002) (en banc) (collecting federal circuit court cases

holding that “physical conduct of a sexual nature” or a “[p]hysical sexual

assault,” meaning touching “areas of the body linked to sexuality,” is

“inescapably ‘because of . . . sex’”); Doe v. City of Belleville, 119 F.3d 563,

580 (7th Cir. 1997) (“[W]hen one’s genitals are grabbed . . . and when one is

threatened with sexual assault, it would seem to us impossible to de-link the

harassment from the gender of the individual harassed.”), vacated on other

grounds, 523 U.S. 1001 (1998); Little v. Windermere Relocation, Inc., 301

F.3d 958, 967-68 (9th Cir. 2002) (finding that “[r]ape is unquestionably among

the most severe forms of sexual harassment” and that “[b]eing raped is, at

minimum, an act of discrimination based on sex”); Doe v. Sch. Dist. No. 1,

Denver, 970 F.3d 1300, 1311 (10th Cir. 2020) (finding that student-on-student

sexual assault “was an act of sex discrimination”); Kramer v. Wasatch Cnty.

Sheriff’s Off., 743 F.3d 726, 743 (10th Cir. 2014) (“[R]ape is inarguably a

severe form of sexual harassment . . . .”); Redd v. N.Y. Div. of Parole, 678

F.3d 166, 180 (2d Cir. 2012) (“Direct contact with an intimate body part

constitutes one of the most severe forms of sexual harassment . . . .”); cf.,

28

Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 & n.3 (3d Cir. 1990)

(holding that “[a] more fact intensive analysis” of whether the complained-of

harassment was “because of sex” “will be necessary” only “where the actions

are not sexual by their very nature” (emphasis added)).

Here, plaintiffs presented evidence that C.V. was subjected to five

months of unwanted sexual touching of her vagina. Under Lehmann, that

touching was inherently “because of” C.V.’s sex.

The Appellate Division held the opposite. According to the Appellate

Division, not only was sexual touching of C.V.’s vagina not automatically

“because of” C.V.’s sex under Lehmann, but it could not, as a matter of law,

be “because of” C.V.’s sex. That is twice wrong.

The Appellate Division held that “there was no evidence that [Dean’s]

compulsive and repetitive behavior was the result of any proven intention to

discriminate specifically against young women.” C.V., 472 N.J. Super. at 584.

The trial court likewise held that “the but for element can’t be

satisfied . . . where you have a compulsive sexual predator, a pedophile.”

But as we held in Lehmann, “[t]he LAD is not a fault- or intent-based

statute.” 132 N.J. at 604. Because “[t]he purpose of the LAD is to eradicate

discrimination, whether intentional or unintentional,” plaintiffs need not show

that an employer or place of public accommodation “intentionally

29

discriminated [against] or harassed [them], or intended to create a

hostile . . . environment.” Id. at 604-05 (emphases added). Indeed,

“[a]lthough unintentional discrimination is perhaps less morally blameworthy

than intentional discrimination, it is not necessarily less harmful in its effects,

and it is at the effects of discrimination that the LAD is aimed.” Id. at 605

(emphasis omitted).

Therefore, even if the Appellate Division were correct that Dean’s

conduct was “fueled by his pedophilia,” and not by any intent to discriminate

“because of [C.V.]’s gender,” C.V., 472 N.J. Super. at 598, “the perpetrator’s

intent is simply not an element of the cause of action,” Lehmann, 132 N.J. at

605.

The Appellate Division also found “no evidence that [Dean] acted

because of [C.V.]’s gender” because of “his own deposition testimony and

history of sexual abuse towards at least one boy.” C.V., 472 N.J. Super. at

598. The trial court too held that Dean’s conduct could not have been bec ause

of C.V.’s sex because “he is a compulsive sexual abuser of children, boys and

girls.” In so doing, both courts relied on Dean’s self-serving deposition

testimony and either did not consider “the competent evidential materials”

plaintiffs presented, or failed to view them “in the light most favorable to”

30

plaintiffs. Samolyk, 251 N.J. at 78. That disregards our responsibility in

assessing a motion for summary judgment.

For example, the Appellate Division stated “that although plaintiffs

argue that [Dean] only abused girls on the bus, there is no evidence in the

record that was true.” C.V., 472 N.J. Super. at 587 n.5. That is incorrect, and

it does not view the evidence in the light most favorable to plaintiffs.

In contending that Dean was accused only of abusing other girls, and not

boys, on the bus, plaintiffs submitted four pieces of supporting evidence:

(1) an arbitral award against Waterford finding that Dean sexually assaulted

J.D., a four-year-old girl on C.V.’s school bus, in the same way he assaulted

C.V.; (2) a forensic psychiatric evaluation report in which a doctor concluded

that another girl, “Lauren,” was sexually abused by Dean on the school bus

and C.V. likely witnessed that abuse; (3) McDonnell’s statement to the CCPO,

before he died in 2011, that Dean would regularly “play magic wands” with

multiple girls on the bus, and his response “I don’t think so,” to the CCPO’s

investigator’s question “Did he play abracadabra with any of the boys?”; (4) a

court order consolidating plaintiffs’ case with another case brought by a girl

named G.G. making the same allegations against the same parties.

When viewed in the light most favorable to plaintiffs, as we must on

defendants’ motion for summary judgment, that evidence is more than

31

“sufficient to permit a rational factfinder to resolve the alleged disputed issue”

-- whether Dean abused other girls on the bus -- “in favor of” plaintiffs. See

Samolyk, 251 N.J. at 78.

There are two other serious problems with the Appellate Division’s

conclusion that there could be no discrimination “because of” sex as long as

Dean had sexually assaulted one boy in the past. The Attorney General

analogizes that holding as “akin to stating a supervisor who repeatedly

sexually abused female employees could not face LAD liability because he had

once sexually molested a single male, decades before, outside of work.” We

agree. Even if Dean sexually assaulted boys in the past, that would not

preclude a holding that Dean’s conduct as to C.V. was because of C.V.’s sex.

Second, even if Dean had sexually touched the genitals of both girls and

boys on the school bus, which there is no evidence that he did, that would not

preclude liability for sexual harassment. It is no “defense for an employer to

say it discriminates against both men and women because of sex.” Bostock,

140 S. Ct. at 1741. As the Supreme Court has explained, “an employer who

fires a woman . . . because she is insufficiently feminine and also fires a

man . . . for being insufficiently masculine may treat men and women as

groups more or less equally.” Ibid. But in both scenarios, the “employer fires

an individual in part because of sex. Instead of avoiding Title VII exposure,

32

this employer doubles it.” Ibid. So too for sexual harassment claims under the

LAD. It is not a defense “[f]or any owner, . . . manager, . . . agent, or

employee of any place of public accommodation,” N.J.S.A. 10:5-12(f), to say

they did not discriminate “on account of” sex because they sexually touched

the genitals of both male and female patrons or students.

The Appellate Division’s conclusion that plaintiffs could not state a

claim under the LAD because there was “no evidence [Dean’s] actions were

based solely on [C.V.]’s status as a member of a protected group,” C.V., 472

N.J. Super. at 593 (emphasis added), likewise misapprehends the law. A

plaintiff does not need to show that membership in a protected class was the

sole reason for the discrimination or harassment; only that it was a motivating

factor.

As the Supreme Court recently reiterated, “the plaintiff’s sex need not be

the sole or primary cause of the employer’s adverse action” in order for

liability to attach under Title VII. Bostock, 140 S. Ct. at 1744. As long as the

plaintiff’s sex is “one but-for cause” of the action, “that [is] enough.” Id. at

1745; see also id. at 1743 (“That an employer discriminates . . . against an

individual only in part because of sex supplies no defense to Title VII.”).

Similarly, under the LAD a “‘plaintiff need not prove that [the protected

characteristic] was the sole or exclusive consideration’ . . . ; rather, he need

33

only show ‘by a preponderance of the evidence that it made a difference’ in

that decision.” Bergen Com. Bank v. Sisler, 157 N.J. 188, 211 (1999) (quoting

Murray v. Newark Hous. Auth., 311 N.J. Super. 163, 174 (Law Div. 1998)).

Waterford asserts that the Legislature could not possibly have intended

for the LAD to apply in this type of case: “If the legislature intended any

sexual contact, any molestation, any sexual assault to fall under the LAD, they

would have said so plainly and unambiguously in the text of the LAD.”

Waterford is correct that the relevant provision of the LAD does not include

the words “molestation” or “sexual assault.” See N.J.S.A. 10:5-12(f).

However, it does explicitly prohibit discrimination on account of sex “in the

furnishing” of any of the “accommodations, advantages, facilities or privileges

of any . . . place of public accommodation.” Ibid.

In Lehmann, we held that sexual harassment is a form of sex

discrimination under the LAD, and that sexual touching automatically occurs

“because of” sex. Lehmann was decided thirty years ago. It interpreted the

LAD, not our Constitution. If the Legislature had disagreed with our holding,

either in 1993 or at any time since, that sexual harassment is a form of sex

discrimination under the LAD, or that sexual touching of a person’s sex-

specific anatomy or areas of the body linked to sexuality automatically occurs

“because of” sex, it could have amended the LAD to overrule our decision.

34

See, e.g., In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 405 (1999)

(recognizing that the Court’s previous decision interpreting N.J.S.A. 9:3-46

had been superseded by the Legislature’s amendment to that statute). It has

not done so.

Waterford is correct that sexual touching of a person’s intimate body

parts was likely “not the principal evil [the Legislature] was concerned with

when it enacted” the LAD in 1945. See Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 79 (1998). But “it is ultimately the provisions of our laws

rather than the principal concerns of our legislators by which we are

governed.” Ibid. That is true even if the enacting legislature did not “expect”

that a provision would apply in a particular way. See Bostock, 140 S. Ct. at

1749-53. The LAD prohibits discrimination “on account of . . . sex” in places

of public accommodation. Under our prior precedent, sexual touching happens

“because of” sex, and the words “on account of . . . sex” in the public

accommodations provision and “because of . . . sex” in the employment

provision, see N.J.S.A. 10:5-12(a) & (f), mean the same thing. Waterford may

therefore be liable under the language of N.J.S.A. 10:5-12(f).

Second, Waterford asserts, plaintiffs have alternative remedies in this

case, including under the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1. See

W.S. v. Hildreth, 252 N.J. 506, 518 (2023). That is neither here nor there. As

35

counsel for Waterford conceded at oral argument, the LAD supplements, rather

than supplants, other civil and criminal remedies and causes of action. See,

e.g., J.M.L. v. A.M.P., 379 N.J. Super. 142 (App. Div. 2005) (reviewing

elements of the same criminal statute Dean was convicted of violating here,

N.J.S.A. 2C:14-2, to complement and inform -- not displace -- the appellate

court’s analysis of the plaintiff’s LAD claim).

Defendants’ remaining two arguments are easily addressed. First,

Waterford contends that it cannot be held liable under the LAD because the

abuse “occurred on a school bus,” and not “on school grounds.” As the

Appellate Division correctly noted, we have already held “that a school bus is

‘a place of public accommodation’” under the plain language of N.J.S.A. 10:5-

5(l). C.V., 472 N.J. Super. at 597 (quoting L.W., 189 N.J. at 401). Second,

before the trial court, T&L argued that “[r]eferences to . . . cases from the

employment context just simply don’t fit.” In L.W., we explicitly held “that

the Lehmann standard should apply in the workplace and in the school

setting.” 189 N.J. at 405. Therefore, under that precedent, employment cases,

at least when it comes to sexual harassment, do fit. 2

2

This Court has never decided what standard of liability should apply to a

school district in a case of sexual harassment perpetrated by a school

employee, and not a fellow student. In Lehmann, we discussed at length the

standards for “employer liability” under the LAD when “a plaintiff establishes

that she was sexually harassed by her supervisor.” 132 N.J. at 615-27

36

B.

We affirm the Appellate Division’s judgment as to plaintiffs’ motions to

amend their complaint and to obtain records of Dean’s intent from Avenel and

the CCPO.

Amending plaintiffs’ complaint to add a claim of age discrimination in

violation of the LAD would indeed have been futile, see Notte, 185 N.J. at

501, but not for the reasons stated by the trial court. It would have been futile

because the LAD does not prohibit age discrimination in places of public

accommodation. Although the LAD makes it “unlawful” for an employer to

discriminate “because of . . . age” in employment, N.J.S.A. 10:5-12(a), there is

no comparable prohibition on places of public accommodation, including

schools. Rather, the LAD makes it “unlawful” for “any owner . . . manager,

. . . agent, or employee of any place of public accommodation” to

“discriminate against any person in the furnishing” of any of the

“accommodations, advantages, facilities or privileges” of “any place of public

(emphasis added). In L.W., we held that a school district may only be liable

under the LAD for student-on-student harassment that creates a hostile school

environment “when the school district knew or should have known of the

harassment, but failed to take action reasonably calculated to end” it. 189 N.J.

at 407. We said nothing in L.W. about what standard of liability would apply

if the harasser were a school district employee or agent, rather than a peer.

Because the parties have not asked us to answer that question in this case, we

do not do so.

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accommodation” on account of many protected characteristics, including sex,

race, national origin, etc. N.J.S.A. 10:5-12(f). Age is not one of them. We

therefore affirm that part of the Appellate Division’s judgment denying

plaintiffs’ request to amend their complaint to include a claim for age

discrimination in violation of the LAD.

As to plaintiffs’ request to amend their complaint to state a claim for

common law sexual harassment once the LAD sexual harassment claims were

dismissed, we have already held that dismissal of the LAD claims was

improper. We therefore do not reach plaintiffs’ request. Finally, given that

Dean’s subjective intent is irrelevant to plaintiffs’ sexual harassment claims

under the LAD, plaintiffs’ reason for seeking Dean’s records from Avenel and

the CCPO is now moot. We therefore affirm the denial of plaintiffs’ motions

to compel, but for different reasons from those stated by the trial court.

V.

The judgment of the Appellate Division is reversed in part and affirmed

in part, and the matter is remanded to the trial court for further proceedings

consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON,

PIERRE-LOUIS, and FASCIALE join in JUSTICE WAINER APTER’s

opinion. JUDGE SABATINO (temporarily assigned) did not participate.

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