A recent New Jersey Appellate Court has confirmed that an employee has good cause to leave her job and be eligible for unemployment benefits if the reason for quitting is because she was continuously sexually harassed for an extended period of time.
In the case of Gerard v. Board of Review, decided September 12, 2017, the claimant Jamielyn Gerard worked as an administrative assistant for Surface Source International, Inc. (SSI) from February 2008 until she resigned in April 2014. According to Ms. Gerard, the warehouse manager continuously called her names, swore at her and used many derogatory terms after she witnessed and confronted him making out with her supervisor in the warehouse. After she confronted her manager about what she saw, the warehouse manager started having a vendetta against her. The warehouse manager had a vendetta against her called her “[m]any verbal names; anything he could say to hurt me. He was commenting on the type of clothes I was wearing, the type of underwear I had on. He . . . stole personal property out of my desk, he vandalized my desk. He physically harassed me[.] [H]e touched me from behind, he had grabbed me. We . . . got into a physical altercation where he took me and slammed me into his desk.” Ms. Gerard further testified, “And he has done so much things to me, and I have continuously met with them and spoke with them and told them all this, and . . . they never did anything to help the situation.” SSI’s owner told her “that the devil he knows is better than the devil he doesn’t know . . . even though he was harassing me and tormenting me.”
Ms. Gerard’s testimony that she made complaints to the company was admitted by SSI. In fact, Ms. Gerard’s manager testified that Ms. Gerard complained that she had been physically and verbally harassed, but excused SSI’s failure to properly investigate stating when the company confronted the warehouse manager, he would say that he “didn’t do anything.” The manager further testified the owner personally met with the manager and the company wrote him up after he slammed his Ms. Gerard into his desk. Even this undisputed testimony was not enough for the Appeal Tribunal to find that Ms. Gerard had good cause to leave the hostile work environment directed at her.
Ms. Gerard appealed the Appeal Tribunal’s decision to disqualify her from receiving unemployment benefits and the case was remanded for a second appeal hearing. The testimony during the second hearing was generally consistent with the first hearing except for one new detail concerning Ms. Gerard’s meeting with the owner in January, 2014. During this meeting, Ms. Gerard complained directly to the owner and told him that she felt the warehouse was “unsafe” and “it was getting worse.” The owner responded to Ms. Gerard that she worked in a small office and that “needed to be able to deal with it” and “to get over it and accept it.” After complaining to the owner, the warehouse manager continued to harass her “physically, mentally, sexually and verbally.” The Appeal Tribunal again found against Ms. Gerard and disqualified her from receiving unemployment benefits.
The Board of Review again reversed, and ordered further testimony concerning the impact the harassment had on her health. During the second remand, Ms. Gerard testified in detail of the stress the workplace harassment and retaliation had on her health. Ms. Gerard testified that she “was so stressed from all of this that my health was deteriorating. I saw seven doctors in the past year, and I’ve spent like hundreds of dollars in co-pays because of all this stress, and my boss was accusing me of forging doctor’s notes.” Ms. Gerard was seen by various doctors, including a pulmonologist, a cardiologist and a gastroenterologist. These doctors found that that her stomach problems, chest pains and trouble sleeping was caused by stress from work. Once again, the Appeal Tribunal found against the claimant by finding that claimant should have complained again after January 16, 2014 and her failure to do so was a “personal reason and was not attributable to the work.”
After considering the testimony from the three appeal hearings, the Appellate Division concluded that Ms. Gerard is entitled to unemployment benefits after quitting her job because of unlawful and sexual harassment and SSI’s failure to stop it. The Court found that Ms. Gerard legitimately believed that the work environment was harmful to her health and her belief was not “imaginary, trifling, and whimsical.”. The Appellate Division further concluded that claimant left her employment out of a genuine and reasonable concern for her personal health subsequent to the company’s failure to take reasonable and promised steps to make sure the harassment stopped.
This is an important case for individuals who are subjected to sexual harassment or physical abuse at the workplace, and feel there is no safe alternative for them but to resign due to an untenable work situation and an unresponsive employer. If you are a victim of sexual harassment and want to speak to an attorney, please call our office to discuss the circumstances with one of our experienced New Jersey employment attorneys.