Perhaps the worst aspect of the already-outrageous Jihad Daniel case is the New Jersey attorney general’s response to FIRE’s letter protesting William Paterson University’s punishment of Daniel. In his response, the attorney general takes the position that even a single “derogatory” or “demeaning” comment directed at “members of protected categories” is unlawfully discriminatory. Putting aside for a moment the inherently subjective and imprecise definitions of “derogatory” and “demeaning,” to understand the true breadth of New Jersey’s non-discrimination law, one need only look at the list of protected categories. In New Jersey, the protected categories are:
- national origin/nationality;
- sex/gender (including pregnancy);
- marital status;
- familial status;
- affectional or sexual orientation;
- gender identity or expression;
- domestic partnership status;
- atypical hereditary cellular or blood trait;
- genetic information;
- disability (including perceived disability, physical, mental and/or intellectual disabilities); and
- liability for service in the armed forces of the United States.
Examine that list carefully, remembering that even a single “demeaning” word directed towards any member of these protected groups is punishable.
This law is utterly inconsistent with free speech. Does expressing admiration for the show Desperate Housewives while at work constitute a violation of the policy? After all, the show’s title is obviously “demeaning” in terms of sex/gender, marital status, and familial status. If New Jersey wanted its harassment policy to be this broad, why waste so much time and paper formulating the expansive list of protected categories? Why not simply codify the old saying, “If you can’t say anything nice, don’t say anything at all”?