sexual harassment lawyer

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

September 18, 2019 | Smith Eibeler LLC

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.

Federal District Court Refuses YMCA’s Request for Gag Rule in Sexual Harassment Lawsuit

September 5, 2019 | Smith Eibeler LLC

A recent federal court decision serves as a reminder of the extremely high burden a litigant has in order to close court proceedings from the public. In our judicial system, the doors of the courthouse open in assuring the public’s right to access to the judicial process. This federal court decision is being considered by many as a victory for the public’s freedom to access judicial information.

In the federal case, Silvka v. YMCA of the Pikes Peak Region, a Colorado District Court struck down the defendant employer’s motion for a gag order and a motion to restrict. In the opinion, Chief Judge Brimmer’s provided a thorough explanation and insight into the public’s right to have access to judicial proceedings. The order also reflected the core principle’s espoused in Professor Eugene Volokh’s objection to the motions raised by the YMCA; that the First Amendment and the common law assert a public right to access court proceedings whether civil or criminal in nature.

The motion for a gag order came as a result of Silvka’s complaint against the YMCA of the Pikes Peak Region. The complaint alleged that a YMCA manager sexually harassed and forcibly groped the former employee and that the YMCA failed to conduct a proper investigation into her complaints. The allegations of the sexual harassment lawsuit include a hostile work environment that involved employees binge drinking, and male upper level personnel abusing their power by coercing young female employees to have sex with them in order to advance in the organization. Silvka claimed to be the latest victim of this culture in her complaint. In response to the complaint and its publication by local news outlets in Colorado, the YMCA sought to impose a gag order fearing the complaint’s publication would prejudice a jury against them.

New Jersey Passes “Panic Button Bill” to Protect Hotel Workers from Sexual Harassment

June 27, 2019 | Smith Eibeler LLC

In a demonstration of support for and solidarity with New Jersey employees that have experienced sexual harassment and sexual assault in the workplace, Governor Murphy signed Senate Bill 2986, nicknamed the “Panic Button Bill,” on June 11th, 2019. This bill was introduced to the New Jersey Senate in September of 2018 and, with Governor Murphy’s signature, will take effect in January of 2020. Governor Murphy claims that, with its passage, New Jersey becomes the first state nationwide to enact legislation of its kind. The passing of the legislation is another victory for employees, and particularly victims of sexual harassment in the #MeToo movement.

In an effort to recognize the prevalence of sexual misconduct in specific areas of employment, the New Jersey Senate has targeted the hospitality industry with regulations intended to protect hotel employees from facing such unlawful behavior. The bill states, “[d]ue to the unique nature of hotel work, hotel employees are particularly vulnerable when working alone in hotel guest rooms…this solitary work places them at risk of assault, including sexual assault, and sexual harassment.” This statement was proven true by a horrific case of sexual assault that occurred in 2018, when a 51-year-old house keeper at Billy’s Casino in Atlantic City was forced into a hotel room and sexually assaulted by a guest. This criminal act sparked a widespread demand for safer working conditions for hotel employees.

New Jersey employees are protected from sexual harassment and sexual misconduct in the workplace by the New Jersey Law Against Discrimination (LAD). The New Jersey Law Against Discrimination prohibits discrimination on the basis of sex, which includes behavior such as inappropriate touching, unwelcome sexual advances, and retaliation for opposing sexual harassment conduct or participating in an investigation into such conduct. These are just some of the many different forms sexual harassment and assault can take. The New Jersey Law Against Discrimination requires that employers take the utmost caution in assuring that their employees are not vulnerable to experiencing this type of unlawful behavior. This is the basis for the Panic Button Bill that Governor Murphy signed into law.

New Jersey Passes NDA Bill Prohibiting Confidentiality of Sexual Harassment Claims

March 19, 2019 | Smith Eibeler LLC

On March 18, 2019, Governor Murphy officially signed S-121 into law that makes any provision in an employment which waives any substantive or procedural right of an employee unenforceable as against New Jersey public policy. Under the new law, New Jersey employers will no longer be able to conceal the underlying details of sexual harassment and other claims of discrimination through the use of non-disclosure or confidentiality provisions in settlement agreements. The new Non-Disclosure law also protects employees from being retaliated against for not entering into any agreement or contract that requires them to waive their substantive or procedural rights.

The Non-Disclosure bill will apply to all workplace discrimination claims alleged or brought under the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination prohibits workplace discrimination on the basis of protected traits such as gender, disability, race, national origin and other protected classes of people. It also prohibits employers from retaliating against employees who oppose discrimination or participate in harassment investigations. Finally, it makes employers responsible for the harm caused to employees who are forced to work in a hostile work environment.

The Non-Disclosure bill is being touted a significant win for New Jersey employees’ rights and the #MeToo movement. The law was sponsored by Senators Loretta Weinberg and Nia Gill an Assembly members Valerie Vainieri Huttle, John F. McKeon and Jon M. Brammick. The law will not be administered retroactively. Instead, it will only apply to employment contracts that are entered into, renewed, modified or amended on or after the law’s March 18, 2019 effective date. This means any contract to arbitrate or settlement agreement requiring the underlying claims of lawsuit to be confidential signed before March 18, 2019 can still be enforced by an employer against an employee.

New Jersey Sexual Harassment Law: Revisiting Aguas v. State of New Jersey

February 11, 2019 | Smith Eibeler LLC

In a 2015 case entitled Aguas v. State of New Jersey, the New Jersey Supreme Court adopted the federal standard regarding employer liability for workplace sexual harassment. For the first time, the New Jersey Supreme Court held that an employer can avoid liability in situations where the workplace sexual harassment did not result in any tangible employment action if the employer can show (1) it has strong anti-harassment policies and effective reporting mechanisms and (2) the plaintiff unreasonably failed to take advantage of the policies and reporting procedures.

The Aquas ruling dramatically changed the manner in which sexual harassment cases have been litigated in New Jersey. It has also served as a valuable reminder to all New Jersey employers of the importance of having strong anti-harassment policies in place to protect employees from sexual harassment.

The plaintiff in Aguas v. State of New Jersey, Ilda Aguas, was a corrections officer in the New Jersey Department of Corrections. During her employment, Ms. Aguas began to experience objectionable sexual harassment at the hands of her supervisor, Lieutenant Darryl McClish. On multiple occasions, McClish both verbally and physically harassed Ms. Aguas, such as by asking her to go to a motel with him, forcing himself on her in imitation of a “lap dance”, and holding Ms. Aguas’s arms behind her back while pressing his genitals against her body and asking “what are you going to do?” Ms. Aguas objected to this behavior directly to McClish, who refused to cease the sexually harassing behavior. Ms. Aguas was additionally harassed by two other supervisors.

New Jersey Sexual Harassment Law: Revisiting Gaines v. Bellino

January 28, 2019 | Smith Eibeler LLC

It is not uncommon when a sexual harassment claim is filed for controversy to arise regarding who exactly is liable for the harassment. In 1993, the New Jersey Supreme Court held in the case ‘Lehmann v. Toys ‘R’ Us’ an employer may be liable if the sexual harasser was acting within the scope of his or her employment or if the employer was negligent for allowing the existence of a hostile work environment. After the Lehman decision, questions remained concerning how victims of sexual harassment could prove that their employer was negligent and therefore liable for the sexual harassing conduct of one of its employees. In a 2002 case Maria Gaines v. Joseph Bellino, the New Jersey Supreme Court provided further clarification concerning an employer’s liability for workplace sexual harassment and established a framework for courts to determine whether an employer has an effective anti-harassment policy.

In Gaines v. Bellino, the plaintiff Maria Gaines was an employee of Hudson County Correctional Facility when she began to experience sexually harassing behavior from her supervisor, Captain Bellino. In 1990, Mr. Bellino forcibly kissed Ms. Gaines against her will. Ms. Gaines objected to the assault, and immediately reported it to several coworkers and some other higher level officials of the facility. She was encouraged to report the behavior, but expressed fear of retaliation as well as of Bellino himself. This fear was shared by multiple coworkers, and Gaines was further advised that the facility’s supervisors would most likely not believe her reports of the harassment. Because of this, Gaines chose not to submit a formal report regarding the behavior. Over the next few years, Gaines was subject to additional harassing incidents. On one occasion, Bellino brought up the initial assault in front of a superior officer, adding that he could even rape Gaines and no one would believe her. In early 1995, Ms. Gaines reported the conduct to the warden of the facility. No investigation was conducted until the middle of 1996, and no action was taken until March of 1997, when Bellino was suspended for 30 days.

Ms. Gaines filed a legal complaint against Bellino and the Hudson County Correctional Facility regarding the harassment in 1998. The trial court granted summary judgment in favor of the defendants noting that the Hudson County Correctional facility maintained an anti-harassment policy and mechanisms for reporting harassment, proven by posters that had been exhibited in the facility as well as a section of the employee handbook that dictated the reporting process. Ms. Gaines appealed this decision, as she argued that the anti-harassment policies were ineffective and not implemented correctly. The question that the New Jersey Supreme Court was charged with answering was whether the Hudson County Correctional Facility’s anti-harassment policy in place were enough to protect an employer from being held accountable for sexual harassment?

New Jersey Sexual Harassment Law: Revisiting Lehmann v. Toys ‘R’ Us

January 15, 2019 | Smith Eibeler LLC

In the midst of a national discussion regarding sexual harassment in the workplace, the laws prohibiting such egregious behavior as well as the methods of reporting and investigating related complaints have come under scrutiny. Many businesses across the country are reviewing their anti-harassment policies to become legally compliant and limit their liability when sexual harassment occurs at their workplace. In New Jersey, a claim of sexual harassment was first recognized in 1993, in the landmark New Jersey Supreme Court case Lehmann v. Toys ‘R’ Us. Commonly referred to as Lehman by New Jersey employment lawyer and judges, this case set the standard for stating a cause of action for a claim of sexual harassment that created a hostile work environment.

Sexual harassment cases are typically divided into two categories: quid pro quo harassment or harassment that generates a hostile work environment. Quid pro quo sexual harassment occurs when an employer or supervisor attempts to make an employee submit to sexual demands as a condition of his or her employment. Sexual harassment that creates a hostile work environment was ill defined prior to 1993, which made Lehmann v. Toys ‘R’ Us the landmark case for sexual harassment cases in New Jersey.

In 1986, Ms. Theresa Lehmann’s employment with Toys ‘R’ Us was drastically altered upon the hiring of Don Baylous as the Director of Purchasing Administration. Under his supervision, Ms. Lehmann and her female coworkers began to experience pervasive sexual harassment that varied from sexualized comments about Ms. Lehmann’s breasts to an instance where Mr. Baylous physically pulled Ms. Lehmann’s shirt over her head to expose her breasts. Ms. Lehmann attempted to report the conduct to several managers, but very little was done to remedy the situation. Instead of addressing Mr. Baylous’s behavior, Ms. Lehmann was offered a transfer to a different department. She rejected this, and later resigned as a result of the harassing conduct and the retaliation she experienced from reporting it. In response to this inadequate managerial reaction, Ms. Lehmann submitted a formal legal complaint of sexual harassment that was initially heard by a trial court. The trial court dismissed all causes of action except battery. Ms. Lehmann appealed, and the appellate court reversed the trial court’s dismissal of her claims of a hostile work environment brought on by sexual harassment, which they remanded for further fact finding. The case eventually found its way to the New Jersey Supreme Court, where it developed into a monumental case in New Jersey court history.

When is an Employer Responsible for Sexual Harassment?

January 2, 2019 | Smith Eibeler LLC

Most people know what sexual harassment is when they see it. Whether an employer is responsible for sexual harassment that occurs at the workplace, however, is a more complicated fact specific inquiry.

It is first important to understand the definition of unlawful sexual harassment. Sexual harassment is a form of unlawful discrimination under the New Jersey Law Against Discrimination. The first form of sexual harassment is quid pro quo harassment. A claim of quid pro sexual harassment occurs when an employer attempts to make an employee’s submission upon a sexual demand or sexual proposition a condition of employment. The second form of sexual harassment is a claim of hostile work environment sexual harassment. The elements of a hostile work environment sexual harassment is when the harassment (1) would not have occurred but for the employee’s sex, and the harassment was (2) severe and pervasive enough to make a (3) reasonable woman believe that (4) the conditions of the employment are altered and the working environment is hostile or abusive.

The first issue to determining whether an employer can be liable for sexual harassment that occurs at its workplace in a lawsuit is to identify the damages an employee is seeking in the case. An employer will be liable for equitable damages and relief if he or she seeks restoration of the terms, conditions and privileges of employment that he or she would have enjoyed but for the discrimination or sexual harassment. Equitable relief is not money damages. Instead, an employee who seeks equitable relief as a result of sexual harassment is looking for the court to require the employer to act or refrain from performing a particular act such as stopping the harassment, job reinstatement or other non-monetary relief.

What is Unlawful Workplace Sexual Harassment under the New Jersey Law Against Discrimination

December 12, 2018 | Smith Eibeler LLC

The #MeToo movement has brought long overdue attention to the systemic societal problems concerning workplace sexual harassment throughout the United States and the State of New Jersey. Most sexual harassment claims by a New Jersey employee are brought under the New Jersey Law Against Discrimination, a state statute. While a New Jersey employee or resident may also bring a claim of sexual harassment under the federal statute, Title VII, most New Jersey employment lawyers counsel clients to proceed with their sexual harassment claim under the New Jersey Law Against Discrimination (LAD). This blog outlines the various types of workplace sexual harassment claims brought under the New Jersey Law Against Discrimination.

In enacting New Jersey’s anti-discrimination law, the state legislature expressly declared “discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a democratic State.” N.J.S.A.10:5-3. New Jersey courts interpreting the LAD have long and consistently recognized that employers are best situated to avoid or eliminate impermissible, pernicious employment practices relating to sexual harassment, to implement corrective measures to stop future sexual harassment, and to adopt and enforce employment policies that will serve to achieve the salutary purposes of the legislative mandate to end workplace discrimination. New Jersey courts consistently remind us that the overarching goal of the New Jersey Law Against Discrimination is nothing less than the eradication of the cancer of discrimination.

There are different claims of sexual harassment that are actionable against an employer. These include claims of hostile work environment, quid pro quo sexual harassment, and sexual harassment retaliation.

Opening the Courthouse Doors: Employers Move Away from Arbitration

December 3, 2018 | Smith Eibeler LLC

An inspiring development is taking place for victims of sexual harassment in the workplace. Employees who are subjected to sexual harassment at work have faced an increasingly prevalent barrier to getting justice: mandatory arbitration. This has meant that for many employment disputes, the courthouse doors have been closed, requiring employees to instead seek relief through arbitration. Earlier this month, Facebook announced that they will be amending their arbitration agreements to no longer require mandatory arbitration for claims of sexual harassment in the workplace. This move comes on the heels of similar announcements earlier this year by Google, Lyft, and Uber, following a wave of protests by employees who felt that the system of requiring mandatory arbitration of all employment disputes contributed to a pervasive culture of sexual harassment.

Arbitration agreements were disfavored historically. Beginning in England in the 17th century, our legal tradition held that arbitration agreements were freely revocable, up to the point where a dispute was actually subjected to arbitration. This remained the controlling law in the United States up until 1925, when Congress passed the Federal Arbitration Act, signaling a change in how disputes would be resolved going forward. This has gradually led to an increase, and in recent years an explosion, in the prominence that arbitration has played.

Today, it has become the norm for employers to require all new hires to sign arbitration agreements at the start of their employment that bar the employees from suing the employer for any claims arising out of their employment. A 2017 survey of 1,500 employers conducted by the Economic Policy Institute produced some startling statistics showing just how widespread arbitration has become in the workplace. According to the survey, among companies with 1,000 or more employees, 65% have mandatory arbitration provisions. Looking at the employee side, among private-sector non-union employees, 56% are subject to mandatory arbitration. Extrapolated out, that covers over 60 million American workers.