In being arrested by a bigoted officer and for one trans woman that became true.
Case Claiming Police Verbally Abused Transgender Man Is RevivedBut on appeal the judges had another opinion,
New Jersey Law Journal
By Charles Toutant
April 27, 2017
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 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' 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.
"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.So what the Appeals Court seems to have said is that discrimination case have a lower standard of a hostile environment than employment cases of a hostile work environment.
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.