In C.V. v. Waterford Township Board of Education, (A-24-22/087260) (Decided September 13, 2023), the Supreme Court of New Jersey reinstated a sex discrimination claim brought under the New Jersey Law Against Discrimination (NJLAD) by the parents of a sexual assault victim. In reaching its decision, the court confirmed that sexual touching automatically satisfies the requirement that harassment occur “because of” sex.
Facts of C.V. v. Waterford Township BOE
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 NJLAD. 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’ NJLAD 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 the dismissal, concluding that the NJLAD 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.”
NJ Supreme Court’s Decision in C.V. v. Waterford Township BOE
The New Jersey Supreme Court reversed, citing that the Appellate Division’s decision failed to recognize the court’s established precedent regarding the NJLAD.
In her opinion, Justice Rachel Wainer Apter began by clarifying that while the NJLAD prohibits discrimination “because of” sex in employment and discrimination “on account of” sex in public accommodation, 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,” Wainer Apter explained. “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.”
The New Jersey Supreme Court went on to find that the Appellate Division erred because its holding conflicted with the precedent established in both Lehmann v. Toys ‘R’ Us, 132 N.J. 587 (1993) and L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381 (2007). In Lehmann, the New Jersey Supreme Court held that sexual touching of areas of the body linked to sexuality happens, by definition, because of sex. It also delineated a four-part test for an employee “[t]o state a claim for hostile work environment sexual harassment.” In L.W., the court 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 New Jersey Supreme Court went on to apply the above standard to the facts of the case. “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,” Wainer Apter wrote. “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 New Jersey Supreme Court also noted that 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. As Justice Wainer Apter explained, 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.
Finally, the New Jersey Supreme Court affirmed the Appellate Division’s judgment as to plaintiffs’ motions to amend their complaint and to obtain records of Dean’s intent. “[G]iven that Dean’s subjective intent is irrelevant to plaintiffs’ sexual harassment claims under the LAD, plaintiffs’ reason for seeking the records is now moot,” Justice Wainer Apter wrote. “We therefore affirm the denial of plaintiffs’ motions to compel, but for different reasons from those stated by the trial court.”