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When It Comes To Discrimination, The Customer Isn't Right

servicee.jpgWhether it's true or not, people complain about their jobs. They can range from an overbearing boss to low pay. But if you're an employee subjected to intolerable behavior not from a boss but from a customer, then you may have legal recourse. In the recent case of Prager v. Joyce Honda, an employee lost a battle but made a point that in business, ,a customer "isn't always right."

The woman bringing the case was 20 and worked as a receptionist for Joyce Honda in Denville, New Jersey. She was there for 11 months when a customer leaned over the counter while she was on the phone and tugged at the sleeve of her off-the-shoulder shirt, exposing her bra.

This was quickly referred to the service manager, who asked whether Ms. Prager wanted to press charges. After being given 15 minutes to decide, she was unsure, so was asked to meet with the dealership's general manager. After watching the surveillance video and seeing the assault take place, the general manager told Ms. Prager that she had the right to press charges, but it would be "unfortunate to lose such a valued customer."

The valued customer bought about 20 cars over the years and came to the dealership often to have his car serviced. The general manger offered to call the customer and reprimand him for his actions. But he did not return the call. Six days later, Ms. Prager sent an email to the VP of the dealership, who was as the general manager's boss and the son-in-law of the owner. Her message gave a detailed summary of what happened, including the way that the managers of the company handled the situation. She expressed disappointment about how the managers tried to influence her not to press charges. Finally, she asked for the VP to intervene and resolve the issue.

The following morning, the VP called her to a meeting with the general manager and service manager. There, she was scolded by the general manager for being immature and indecisive about whether to press charges. The meeting ended with the VP calling the police to report the incident with the customer. The police interviewed Ms. Prager and the customer ended up pleading guilty to a petty disorderly offense of offensive touching.

Soon after filing the criminal complaint, Ms. Prager claimed that the work environment changed. She felt isolated and people were avoiding her. About a week after she filed the complaint, she got 2 written warnings for leaving early without permission.

The general manager and vice president met with her again, after the 2 warnings. She "blew up" and claimed that the warnings were retaliation for her pressing charges against the customer. Soon after, she decided to leave and filed a claim against the dealership, claiming a forced termination, which is illegal under the New Jersey Law Against Discrimination (LAD), because the dealership management created a hostile work environment after she reported the so called "valued" customer.

The New Jersey Supreme Court has stated under the LAD, a constructive discharge occurs when an employer knowingly permits conditions of discrimination in employment "so intolerable that a reasonable person would be forced to resign rather than continue to endure it." That Court concluded in Ms. Prager's case that the 2 written warnings did not rise to that level. The court did acknowledge that written warnings might, in some circumstances, but they "simply [could not] find on the facts that these particular warnings posed any harm to plaintiff at all." That was bad news for her.

What is important about this decision is that it confirms that discrimination from a customer can mean that an employer is knowingly permitting conditions of discrimination in the workplace, even from a sexist or racist customer. Omar Bareentto is a 2016 Rutgers School of Law graduate and a former contributor to the Rutgers Business Law Review. He collaborated with me on this blog.


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