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

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.

A claim of a hostile work environment against an employer arises when the employer knows or should have knowledge of the existence of a hostile work environment directed at an employee or group of employees.  The complained of harassment causing the workplace to become hostile must be based upon the protected class of the employee or group of employees who complain of sexual harassment.  For example, the harassment must be based upon the employees’ gender. When an employer knows or should know of the existence of a hostile work environment, the law requires it take action to implement effective measures to stop the unlawful harassment.  When an employer does not have effective preventive and remedial measures in place, the law considers the employer to be joining the harasser in making the work environment hostile.

A second form of sexual harassment is quid pro quo sexual harassment.  Quid pro quo sexual harassment occurs when an employee propositions another employee for a sexual act or favor based upon a condition or term of employment.  For example, quid pro quo sexual harassment occurs when a supervisor threatens to discipline an employee for refusing to engage in a sexual act with him or her.  Quid pro quo sexual harassment can also occur if he or she informs an employee that they will receive a job benefit (i.e. a raise, promotion, favorable job assignment) if they engage in the desired sexual act with them.

A third form of sexual harassment occurs when an employee suffers retaliation from his or her employer for complaining of sexual harassment or participating in a sexual harassment complaint investigation. The New Jersey Law Against Discrimination strictly prohibits employers from retaliating against employees for engaging in protected activity.  An employee engages in protected activity when he or she complains of sexual harassment and the complaint is reasonable and made in good faith. An employee also engages in protected activity if he or she participates in a sexual harassment complaint, for example, encouraging a co-worker to make a complaint of sexual harassment to his or her employer or being interviewed as part of a sexual harassment investigation. In order to prove a claim of retaliation under the LAD, the employee must show that (1) he or she engaged in protected activity; (2) was subjected to retaliation at the time, or after, the protected activity took place; (3) there is a causal connection between the adverse employment action and the protected activity.

 

An employer can be responsible for the harm caused by sexual harassment to an employee under either the negligence and agency theories of liability.  The negligence theory imposes on the employee the burden to prove that the employer failed to exercise due care with respect to the retaliation in the workplace, and that its breach of duty of care caused employee to suffer harm and damages. Factors relevant to a negligence claim against an employer include the existence of (1) formal policies prohibiting discrimination in the workplace; (2) complaint structures for employees’ use, both formal and informal in nature; (3) anti-harassment training, which must be mandatory for supervisors and managers and must be available to all employees of the organization; (4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) an unequivocal commitment from the highest levels of the employer that discrimination would not be tolerated, and demonstrated of that policy commitment by consistent practice.

The standard for vicarious liability for employers for the wrongful acts of its employees is based upon the principles of agency.  Under the vicariously liability theory of liability, an employer is responsible for torts of one of its employees if that employee is acting within the scope of his or her employment.  This vicarious liability theory recognizes that a supervisor, as opposed to a co-worker, is in a sense always aided by the agency relation because a supervisor’s power and authority invests his or her harassing conduct with a particular character.

Whether an employer can be held legally responsible for an incident or series of incidents of sexual harassment under the New Jersey Law Against Discrimination is a fact specific inquiry that should be evaluated by an experienced New Jersey sexual harassment lawyer.  If you believe you, a friend, or a family member have been subjected to workplace sexual harassment, please feel free to contact one of our New Jersey sexual harassment lawyers to consult and determine whether you have an actionable claim against the employer.