In addition to upholding the Division’s order that Dane Construction and its owner Pat Buckley pay former employee Shi-Juan Lin $25,000, the Appellate panel also upheld a $5,000 statutory penalty imposed by Division Director Craig T. Sashihara. An order that Dane Construction reimburse the State $31,000 in legal fees and costs also was upheld.

“We agree with the Appellate panel’s findings and are heartened by its decision,” said Division Director Craig T. Sashihara. “This was an example of an employee trapped in a ‘no-win’ situation. Ms. Lin was harassed on a regular basis by offensive, hateful remarks and felt that she had no recourse because the head of the company was the person making those remarks.”

Lin, of Carteret, was hired as a bookkeeper and secretary by Dane Construction in February 2008. Her employer was aware of her Chinese heritage and also knew that Lin’s fiancé was black and of Jamaican descent, and that the couple had a five-year-old son together. Despite that awareness, a 2010 Finding of Probable Cause issued by the Division noted, State investigators found sufficient evidence that Lin was subjected -– typically by Buckley -- to unlawful workplace discrimination in the form of slurs aimed at African-Americans and, on at least one occasion, a remark directed at her that was both racially discriminatory and sexually harassing.

The Appellate court wrote that “if defendants directly discriminated against Lin because of the race of her fiancé or child, she is an aggrieved person under the LAD, and is treated as a member of their protected racial group.” The court reasoned that, “Given the nature of Lin’s hostile work environment claim, the Director properly treated Lin as a member of their protected racial group to evaluate her claim.”

Lin approached Buckley and her direct supervisor with her objections to the remarks, but to no avail. She testified that the harassing work environment took its toll in the form of hives, anxiety, depression and loss of sleep.

“These were unfortunate circumstances,” said Sashihara. “The owner and the woman usually worked alone together in the office. He knew that she was living with her fiancé – a black man of Jamaican descent – and his family, and that they had a bi-racial son who would visit the office. Still, he used the ‘n-word’ on a regular basis, despite her repeated objections.”

Buckley denied using racial slurs regularly, but acknowledged using a slur on at least one occasion within earshot of Lin. Buckley told state investigators he once argued over the phone with an individual he believed to be of Jamaican ethnicity, and afterward used a slur to refer to the man while in his office. Buckley told investigators he may have uttered the slur a second time while continuing to “rant” about the incident near Lin’s work station. Although he described it as an isolated incident, Buckley also admitted that he may have used racial slurs such as the “n-word” in “personal conversations” around the office.

Shi-Juan Lin worked at Dane Construction until June 13, 2008, when she resigned without another job in place. Lin told investigators she could no longer stand the hostile work environment, which was not confined solely to racist remarks. She described one occasion in which her employer commented appreciatively on the way her jeans fit with respect to a particular part of her “oriental” anatomy. Buckley denied making the remark -- he claimed it was made by an unidentified worker who may not have understood the comment was inappropriate -- and said he later rebuked the worker.

In pursuing her formal complaint through the Division on Civil Rights, Lin alleged not only race-based and sexual harassment, but constructive discharge – essentially, loss of employment through a work environment so hostile that it left her no choice but to resign. An Administrative Law Judge (ALJ) who presided at a two-day hearing on the case ruled there was insufficient evidence to prove Lin had been subjected to either a hostile work environment or constructive discharge, mainly due to the fact that Lin was Asian, and not herself black.

Director Sashihara, however, determined the ALJ had applied the wrong standard and subsequently reversed the ALJ’s ruling in a Final Decision issued in May 2013. He found that Lin was the “functional equivalent” of the protected group targeted by Buckley because of her circumstances.

Dane Construction then appealed to the Appellate Division, which affirmed Director Sashihara’s decision in a 28-page opinion issued March 17.

Assistant Attorney General Andrea Silkowitz and Deputy Attorneys General James R. Michael, Charles S. Cohen and Farng-Yi Foo, assigned to the Division of Law, handled the Dane Construction matter on behalf of the State.

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