Can the Mere Presence of a Sexual Harasser Constitute A Hostile Work Environment?

As with any legal issue, claims of sexual harassment involve many different legal factors that require consideration. Among these are a plaintiff’s potential damages, the statute of limitations related to the legal issue, and what exactly constitutes individual instances of harassment. These factors are made increasingly difficult to assess because of the nature of sexual harassment, especially when the harassment is pervasive as opposed to severe.


Various court cases have provided clarity on many of the issues involved in sexual harassment cases. Karen Caggiano v. Armando Fontoura et al., helped to explain when a plaintiff’s right to file a complaint regarding sexual harassment expires, as well as what type of behavior may constitute continuous harassment.  In this case, Karen Caggiano endured years of pervasive harassment while employed as a Sheriff’s Officer in Essex County. Armando Fontoura, among others, constantly made derogatory comments relating to Ms. Caggiano’s sexual orientation and appearance. Her male coworkers regularly propositioned her for sex in extremely explicit and offensive language, and one individual went further, exposing himself to her on numerous occasions.

Fearing termination or other adverse employment action, Ms. Caggiano did not file a formal complaint regarding the harassment. However, in December 1996, Ms. Caggiano’s Captain overheard her discussing the harassment with a coworker. Her Captain ordered Ms. Caggiano to file a formal report of the conduct. Following this report, the incidents of harassment ceased, and Ms. Caggiano, along with several of the perpetrators, were transferred to different offices. A final incident of harassment occurred in February 1997, when Ms. Caggiano was assigned to attend same sexual harassment training in a group with two of her harassers. She was forced into this interaction despite the fact that there were approximately 400 employees attending the training in groups of 10. Nearly two years later, Ms. Caggiano decided to file a civil lawsuit alleging sexual harassment in the workplace.

Ms. Caggiano’s complaint raised several relatively novel questions. The first addressed the statute of limitations for claims of sexual harassment. Typically, victims of harassment have two years following the harassing incidents within which to file a complaint regarding the unlawful behavior in the court of law. Typically, if a complaint is not filed within 2 years of the occurrence of the unlawful behavior, the individual will lose their ability to pursue a lawsuit based on that unlawful behavior.

In Ms. Caggiano’s case, the vast majority of the harassing incidents occurred more than two years prior to the filing of her complaint. In fact, only one instance of harassment, which occurred in February of 1997, was within the scope of the statute of limitations at the time Ms. Caggiano filed her complaint. On this basis, the defendants sought to dismiss those claims that pertained to the behavior that occurred more than two years before the complaint was filed. The court was then left to consider whether an exception to the typical functioning of the statute of limitations was appropriate, or if Ms. Caggiano’s claims had to be excluded.

In appeal, the New Jersey Appellate Division determined that an exception should be made in this case. Instead, the court adopted a rule that allows a sexual harassment claim to proceed “as long as at least one of a series of acts, which together created the hostile environment, fell within the statutory period”. The court explained that, by their very nature, cases of pervasive sexual harassment necessarily involve an accumulation of a series of discriminatory or harassing events that, cumulatively, represent a single cause of action. Individuals such as Ms. Caggiano must be able to proceed with a complaint because the final harassing incident occurred within the scope of the statute of limitations – based on that incident, it is fair to say that the course of conduct rising to the level of “pervasive” harassment occurred, in part, within the statutory period.

Notably, the court expanded prior precedent regarding what may constitute an incident of continuing sexual harassment. The court stated, “once a pattern of harassment has created a psychologically offensive work environment, the status quo of such continuous wrongful conduct can be based on the harasser’s mere presence.” This means that even though explicit harassment may have ceased, if the harasser continues to work within the same physical area as the victim of harassment, this in itself constitutes an incident of harassment.

This is an important decision as it pushes back against a common defense: that the cessation of explicit harassment fulfills an employer’s obligations to employees who were harassed by a coworker. This ignores the reality that victims continue to experience emotional distress when they are forced to keep working with their harassers, regardless of the harassers’ specific behavior. The decision in Caggiano v. Fontoura, et al, ensures that employers may be liable for harassment if they require an employee to continue working with their harasser.

This case is a welcome result for individuals who experience sexual harassment in the workplace, as it broadens both the time individuals are allowed to file complaints of harassment as well as the definitions of what can constitute an incident of harassment. As compensation for her experiences, Ms. Caggiano was awarded $4.8 million in damages and attorney’s fees. If you feel that you may be a victim of sexual harassment, it is important to contact an experienced sexual harassment attorney to discuss your case and evaluate these and other factors that may impact your case. Call the sexual harassment attorneys of Smith Eibeler today for a free consultation.

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