The New Jersey Law Against Discrimination authorizes a cause of action for the sexual harassment of an individual in the workplace. There are various types of sexual discrimination lawsuits and they can be brought against different parties. In certain circumstances, cases can be brought against both supervisory and non-supervisory employees and additionally, the actual employer can be held liable depending upon the specific facts and circumstances and which particular individuals were committing acts of sexual harassment.
In a sexual harassment action, the plaintiff must establish that the complained of conduct occurred, whether the conduct constitutes harassment on the basis of sex or another form and must also establish whether the employee, employer or both should be held reasonable for it.
More specifically, the plaintiff must establish by a preponderance of the evidence that the sexual harassment did in fact occur. The plaintiff must also establish that the complained of conduct constitutes harassment meaning that the conduct occurred because of the individual’s sex and secondly that the conduct was severe and pervasive enough to make a reasonable person feel as though the work environment was altered and the environment was hostile and intimidating.
The standard that a jury must use in determining if the conditions of employment were hostile and intimidating is known as the reasonable person standard. In other words, the jury must determine if a reasonable person of the same sex, subject to the same conduct would feel as though the environment was both hostile and intimidating.
In order to establish a case against the employer, the plaintiff does not need to prove that the employer or the harasser actually intended to harass him or her or that they actually intended to create a hostile work environment. The actual intent of the harasser or employer is not at issue. The issue is simply whether the conduct occurred because of plaintiff’s sex.
The law in New Jersey does not require that the workplace be completely free from any vulgarity or sexually laces speech or conduct. Occasional isolated or trivial statements and or conduct generally do not give rise to sexual harassment. Conduct must give rise to either the severe or pervasive standard. It is important to note that either or is sufficient. Conduct and or statements need not be both pervasive and severe.
Finally, conduct need not be directed exactly at the plaintiff. Conduct and or speech can create a general hostile work environment which is sufficient to establish sexual harassment under the law. Conduct or speech can be directed at other individuals and can be considered in a sexual harassment suit as long as the plaintiff witnessed it.
One way in which an employer may be liable for sexual harassment even though the employer did not directly engage in the sexual harassment is through the failure to take proper remedial action. Effective remedial action under the law is action which is reasonably calculated to stop the harassment. The reasonableness of the employer’s actions should be judged in comparison with the actions which they should stop. More severe conduct requires a more significant reaction from the employer.
Another way in which an employer may be liable for sexual harassment is if supervisors who have authority to delegate and or control policy commit acts of sexual harassment.
Finally, an employer may be liable for sexual harassment if the plaintiff is able to prove that the employer was negligent in that hey failed to take any reasonable steps to prevent sexual harassment from occurring within the workplace and as a proximate result, sexual harassment occurred.
In New Jersey, the jury is permitted to consider the following in determining whether an employer is reasonable for sexual harassment:
- Whether it had in place well-publicized and enforced anti-harassment policies;
- Whether it had effective formal and informal complaint structures;
- Whether it had in place anti-harassment training programs; and
- Whether it had in place harassment monitoring mechanisms.
The Defendant in a sexual harassment case may raise specific defenses including, claiming that the employer exercised reasonable care and or that the plaintiff failed to take advantage of any preventative or corrective opportunities that were provided.
In summary, sexual harassment can take on the form of many different types of conduct. That type of conduct can include verbal harassment, physician harassment, unwanted advances, and generally demeaning or harassing acts.
If you or someone you know believes that they have been the victim of sexual harassment, contact our New Jersey sexual harassment and workplace attorneys today. Our lawyers represent individuals who have been subject to sexual harassment throughout the state of New Jersey. Our lawyers are aggressive attorneys who will fight for you. If you would like to set up a free consultation with one of our lawyers call our office or click on the chat tab. An attorney will set up a time to meet with you and discuss your claim. Additionally, sexual harassment claims are handled on a contingency basis which means that you will not pay a legal fee unless we recover money on your behalf.