February 8, 2022
TRENTON, NJ (MERCER) – Acting Attorney General Andrew J. Bruck announced today that the Division on Civil Rights (DCR) has issued a Finding of Probable Cause against Capital Health Services over its alleged failure to effectively address a Black employee’s complaints about the use of racial slurs and racially stereotypical references in the workplace.
While Capital Health ultimately took action in response to two workplace conversations that were central to the Black employee’s complaint, DCR found after a preliminary investigation that the action alone was not sufficient in addressing broader allegations — brought by the same employee — that she had experienced racially inappropriate remarks in the work environment on multiple occasions over a six-month span.
“We are committed to promoting racial justice and economic opportunity for all New Jersey residents,” said Acting Attorney General Bruck. “We expect employers to know and understand their obligations under the law in this important area, including by appropriately investigating and taking action to address the use of racial slurs and other discriminatory language in the workplace.”
“The New Jersey Law Against Discrimination holds the promise that employees will not be subjected to a hostile environment in the workplace,” said DCR Deputy Director Rosemary DiSavino. “Although it seems self-evident, this case serves as a reminder that an employee report that offensive language, including the word “n*gger”, are being used in the workplace, triggers the employer’s obligation to take swift remedial action.”
Capital Health Services has approximately 4,300 employees and operates two hospitals and 22 outpatient facilities in New Jersey. The complaining Capital Health employee worked as an electronic billing representative handling patient accounts. She filed her formal complaint with DCR in November 2020, alleging she was subjected to a hostile work environment and later discharged for complaining about it.
Following its preliminary investigation, DCR declined to find probable cause in connection with the worker’s claims of retaliatory discharge. However, the Division did find probable cause regarding her allegations of racially offensive language in the workplace.
Under the Law Against Discrimination, a worker alleging a racially hostile work environment must show that the complained-of conduct would not have occurred but for the worker’s race, and that the conduct was severe or pervasive enough to make a reasonable person of the complainant’s race believe that the conditions of employment are altered and the working environment is hostile or abusive.
The complainant alleged that Capital Health management was not adequately responsive to the information she provided, in the summer of 2019, about a co-worker’s use of a racial slur in conversation with her. Complainant also relayed to management about the same co-worker’s alleged engaging in racial stereotypes through such utterances as “you people love pit bulls,” asking why Black people are “so loud,” inquiring as to whether she got her “baby daddy” a Father’s Day card, and stating “why her husband would never marry a black woman, stating all they care about is purses and hair weaves.”
In its investigation, DCR found that the co-worker who used a racial slur in conversation with the complainant in June 2019 is mother to a bi-racial son. The bi-racial son was being bullied at school and, the co-worker contended, her use of a racial slur was only to illustrate for the complainant some of the racist language that had been directed at her son by his schoolmates.
The investigation further determined that after initially approaching her immediate supervisor about the June 2019 conversation in which her co-worker used a slur, the complainant wrote an email to Capital Health’s vice-president of human resources in August 2019. In that email, the complainant alleged that she’d experienced another offensive encounter with the same co-worker, and that this time the co-worker had made a “you people” reference during their conversation. In her email, the complainant also made reference to multiple “racial undertone conversations” she’d been experiencing in the workplace over the prior six months that made her “very uncomfortable.”
While Capital Health took no action after the complainant approached her immediate supervisor in June 2019 — the complaining employee expressed no desire at that time to pursue a formal workplace action against her co-worker — it did take action after the August 2019 email to human resources.
Specifically, DCR’s investigation found, Capital Health met separately with both employees to discuss the issue, cautioned the offending co-worker, and moved the offending co-worker’s work station away from the complainant’s own work station.
In its Finding of Probable Cause, DCR observed that Capital Health has a written Policy Against Discrimination that encourages employees who believe they have witnessed or experienced discrimination to report it to management, and asserts that “all reports of perceived discrimination will be thoroughly and discretely investigated” by management.
The Finding of Probable Cause, however, notes that Capital Health initiated no investigation and took no action in June 2019 after the complainant first spoke to her immediate supervisor about her co-worker’s use of a racial slur. Only after the complainant reported via email a second racially-offensive conversation with the same co-worker, in August 2019, did the company act, and the extent of its action was limited to meeting with the complainant and her co-worker regarding the June incident, and to separate their work stations.
Based on the Division’s investigation, the Finding of Probable Cause states, Capital Health appears to have made no attempt to investigate or “gain a better understanding of” either the August incident that triggered the email to Capital’s vice-president of human resources, or the complainant’s broader allegations of a hostile work environment observed over a period of months.
A Finding of Probable Cause does not represent final adjudication of a case. Rather, it means DCR has concluded its preliminary investigation and determined there is sufficient evidence to move the complaint forward procedurally based on a reasonable suspicion the LAD has been violated.
To view a fact sheet on racial discrimination in employment and the rights of employees under the New Jersey Law Against Discrimination, go to https://www.njoag.gov/wp-content/uploads/2021/06/fact_Race-Disc-Employment.pdf .
People who believe their rights under the LAD have been violated can file a complaint with DCR by visiting https://bias.njcivilrights.gov/ or calling 1-833-NJDCR4U (833-653-2748).
DCR is the state agency responsible for preventing and eliminating discrimination and bias-based harassment in employment, housing, and places of public accommodation (e.g., places open to the public like schools, businesses, hospitals, etc.) by enforcing the New Jersey Law Against Discrimination (LAD), the New Jersey Family Leave Act, and now the Fair Chance in Housing Act (FCHA).