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Sunday, October 23, 2016

Is This Sexual Harassment?

A boss's repeated requests for a date with an employee and which the employee declines, even if requests are not imbued with sexual innuendo, could be considered sexual harassment if the employee felt uncomfortable or threatened, particularly if employee’s declining the requests are followed by the victim's being fired or demoted or being transferred to a less desirable location. If an employee reports acts that he/she believes are sexual harassment, and the reporting results in an adverse employment action, there may be a claim for retaliation.

While the law in NJ under state and federal law, doesn't prohibit simple teasing, or single incidents that are not very serious, or offhand non-threatening comments, acts may be illegal harassment when they are so frequent or severe that it creates a hostile or offensive work environment. A single incident, if sufficiently severe, may be enough to prove a valid claim. However,  an isolated incident, even if in bad taste,  may likely  not suffice to prove the act created an environment that was sufficiently hostile to sustain a sexual harassment claim.  If the harasser’s sexual advances are rebuffed by the employee,  and such rejection or a snub results in an adverse employment decision, such as the employee being fired or demoted, there could also be a valid retaliation claim. The advances do not have to be sexual touching in nature to suffice such a claim.

A sexual harasser in the workplace (and elsewhere) may make statements such as, “You are too sensitive,” or “You are being too PC,” in order to deflect blame off of himself or herself for the sexual harassing acts.

A person who feels they are being sexually harassed at work should report such harassment in writing (making sure to retain a copy) to the person designated to receive and institute an investigation of such complaints. This information should be in the employee handbook. If the employer has no valid solid sexual harassment policy in place, this lack of a policy may be evidence of discriminatory practices that could help a harassment Plaintiff. For a valid claim, the harasser does not have to be a boss or supervisor; it could be any co-worker, including a supervisor in another department of the company. It could even include someone who is not an employee of the employer, such as a customer.

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination.  For victims of sexual harassment in New Jersey,  the New Jersey Law Against Discrimination, unlike Title VII, applies to all employers regardless size and the number of employees. For sexual harassment claims under Title VII, Title VII applies to employers with 15 or more employees, including private employers, state and local governments, employment agencies and the federal government. Under Title VII, a plaintiff must exhaust administrative remedies before they can file a lawsuit.

Recently the Fifth Circuit Court, in Pullen v. Caddo Parish School Board, (not a New Jersey case) reversed a sexual harassment judgment because of lack of employee training. Although the Pullen decision is not controlling in the Third Circuit Court, which Federal Appeals Court covers review of New Jersey’s Federal District Court decisions, the Federal Circuits often look to other Circuits’ decisions as guidance in their own cases. In July of 2016, the Fifth Circuit Court recently reversed a summary judgment that had been made in favor of the employer, deciding that the Caddo Parish School Board had failed to provide their employees with sufficient information about its sexual harassment policies.

The Circumstances of the Case Against the Caddo Parish School Board

The plaintiff in this case was an employee of the Caddo Parish School Board. She claimed that she had been sexually harassed by her supervisor and that the harassment continued even after she was relocated to another department and no longer worked under his supervision. She did not, however, complain formally during the period of harassment, but rather more than two years later. [A Note of Caution: when an employee waits to complain about the harassment, it can sometimes lead to the employee/Plaintiff losing in such kind of case.]

The lower court had determined that the plaintiff's failure to report the alleged harassment for more than two years was unreasonable and that she did not, therefore, have a substantive argument. When the case was appealed to the Fifth Circuit Court, however, further evidence came to light demonstrating that the Caddo Parish School Board had never taken the appropriate steps to prevent sexual harassment. The Circuit Court ruling was based on the fact that not all employees had been trained in regard to sexual harassment, nor provided with information about the board's policy on such matters. Although the employer had evidence that it had posted its sexual harassment policy on bulletin boards around the central office, and that the policy was also available to be read online, the higher court became convinced, largely by the testimony of other employees, that employees had never been directly informed about the policy, nor trained on the subject. 

Employees were not even notified that such a policy existed, and were certainly not aware that information about such a policy was posted. They were also ignorant concerning how they were supposed to proceed if they experienced sexual harassment. In reversing the decision of the lower court, the appellate court held that the board had been remiss in not taking the necessary steps to prevent sexual harassment. They further concluded that the delay in the plaintiff's complaint was explicable by her ignorance that an employment policy had been violated and by her never being informed about how to report such an experience.

The United States Supreme Court Decided Two Cases, Faragher v. City of Boca Raton and Burlington Industries V. Ellerth, That Held to Two Established Theories of Employer Liability in Sexual Harassment Cases

The first is when the victim of the harassment proves the employer was negligent as to allowing sexual harassment of employees.  If the employer did not have an anti-harassment policy  or had an ineffective policy, the Plaintiff may be successful in proving negligence.

These cases are extremely fact sensitive. A victim's being overly politically correct (PC) will not be enough to sustain a claim if a reasonable person standing in that employee’s shoes would not feel threatened or harassed to the degree that the quality of the work environment had become sufficiently hostile for it be an adverse hostile work environment.

The second theory is “vicarious liability", where the employer can be liable for harassment committed by their employee. Vicarious liability holds employers responsible for acts of harassment committed by their employee supervisors. Here, the plaintiff must prove that the employer put the harasser in a position of authority over the victim employee. 

Sexual harassment is extremely difficult to endure and no worker should have to suffer it in the workplace .

What You Can Do

If  you believe you may be the target of sexual harassment in the workplace, it is important to consult with an aggressive and experienced employment attorney. If you complained about such harassment and your employer then retaliated against you, you may also have a claim for retaliation. If you believe you are being subjected to such unlawful workplace sexual harassment, discrimination or retaliation, please contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.


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