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Monday, December 4, 2017

What If My Boss Does Not Sexually Harass Me but a Co-worker Harasses Me? Joking about Workplace Sexual Harassment Is Not Funny

It is rare that a working woman has not known someone, be it herself or others, who had experienced some form of sexual harassment in the workplace. While women are not the only victims, more women are coming out of the closet as to reporting such harassment. While the allegations against famous persons have been garnering the media attention, the average blue collar and white collar female often feels overwhelmed by the thought of a potential retaliation if they report a coworker’s or boss’s abuse. Consequently, they may feel beaten down and think the best the course is the path of least resistance, which to some may mean continuing to suffer in silence or quitting, particularly if the abuser is a supervisor.

The Standards for Bringing a Sexual Harassment Hostile Work Environment Claim.

The standards for bringing a sexual harassment hostile work environment claim under the New Jersey Law Against Discrimination (NJ LAD) are that the employee must show conduct that is “severe or pervasive” harassment. Sexual harassment is conduct that can range from inappropriate touching to posting offensive material on a bulletin board or even on a restroom wall. A key qualifying adjective is that the conduct is “unwelcomed”.

Sexual harassment can include unwelcome physical touching. It can also include unwelcome sexually-tinged joking, comments and put-downs, especially when the comments are continuing and pervasive in nature. The worker need not show conduct that is both severe and pervasive harassment. When the conduct is not that severe, then the more pervasive or frequent the conduct must be to qualify for a valid claim. One isolated incident if sufficiently severe, may be enough to bring a valid hostile work environment claim. Although the law does not prohibit offhand comments or isolated incidents that are not very serious, harassment is illegal when the conduct is so frequent that it creates a hostile or offensive work environment, which same conduct, if not severe and committed just once, would not be sufficient to be bring a claim.

Can My Employer Be Liable for a Co-workers Sexual Harassment Even When My Boss Is Nice to Me

Yes. Initially, the United States  Supreme Court In Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), made clear that under federal statutes, employers are subject to vicarious liability for unlawful harassment by supervisors. Subsequently, in New Jersey, in Cerdeira v. Martindale-Hubbell, 402 N.J. Super. 486, (App. Div.) 2008, New Jersey under the NJLAD extended protection for harassment from co-workers in the absence of an employer’s effective preventative mechanisms and policies that are well-published to its employees. The absence of such a policy under the NJLAD can subject an employer to liability for co-worker harassment particularly when there are no realistic effective mechanisms in place to prevent and stop the harassment.

Until Cerdeira v. Martindale-Hubbell, there was no published New Jersey court decisions addressing employer liability for co-worker harassment where the employer  failed to have in place effective and well-publicized sexual harassment policies that provide employees with reasonable avenues for making known their sexual harassment by a co-worker complaints to the employer. The Cerdeira court determined that constructive knowledge of a co-worker’s sexual harassment based upon a negligence theory of direct liability,  or through agency, may be imputed to an employer where the employer has failed to have in place sexual harassment policies that are both effective and well-publicized, that provide employees with reasonable avenues for bringing sexual harassment complaints to the employer.

Even If There Is a Sexual Harassment Policy in Place, it Cannot Guarantee an Employer’s Insulation from Liability for Acts of Harassment by a Co-worker.

In Lehmann v. Toys 'R' Us, 132 N.J. 587 (1993)  the New Jersey Supreme Court recognized that employer liability for hostile work environment claims in NJ may be advanced under a negligence theory premised upon the employer's failure to have in place effective sexual harassment policies and that such claims may be based upon agency principles or direct liability. The Court declined, however, to set forth a standard of negligence governing such claims.
Subsequently, the Cerdeira court stated that while nothing can guarantee insulation from liability for negligence, they repeated that there are five elements as identified by the Supreme Court  Lehmann as fitting the description of an effective policy: 

1) an anti-harassment policy that is distributed to employees, 

2) an internal employee complaint structured process that allows for formal and informal complaint procedures, 

3) training, which has to be mandatory for supervisors and managers and needs to be offered for all members of the organization, 

4) effective monitoring mechanisms  to determine whether the complaint structure is trusted by the employees who may use it or just lip-service, bogus paperwork, and 

5) "an unequivocal commitment from the top that is not just in words but backed up by consistent practice."

If the employer has the above five elements in place, and you are being subjected to sexual harassment by a co-worker, the employer may not be able to correct it if the employer has no knowledge of it, does not witness it, or if the acts of sexual harassment are not being reported to them. Accordingly, even with these five elements in place, an employer’s knowledge of the harassment will not be imputed to him, if, does the employer does not witness it or if the acts of sexual harassment are not being reported to them. However, every case if very fact specific and sensitive; consequently even if there is a sexual harassment policy in place, it cannot guarantee an employer’s insulation from liability for acts of harassment by a co-worker. An employer’s failure to investigate claims of employee rule breaking, including sexual harassment, are actionable.

You Should Think Twice Before You Simply Quit You Job for Two Reasons.

1. If you simply quit your job, there is a good chance that you may be denied Unemployment benefits if the DOL hearing officer finds there was no Constructive Discharge which is a much higher standard to prove than a hostile work environment claim. If you simply quit your job, there is a good chance that you will be denied Unemployment benefits if the DOL hearing officer decides that that you took no reasonable action to remain employed (which in this context could be failing to report it to the proper management so they might take corrective action to stop the harassment). The DOL hearing officer could also decide that  the environment was not so hostile, was not so intolerable, that no reasonable person could have withstood it, and therefore that you were not constructively discharged, but you voluntarily resigned, and so deny you benefits. 

2. If you quit your job and file a lawsuit you could lose you right to collect economic damages if it is decided that there was no constructive discharge - which bears repeating - is a much higher standard to prove than the standard for a hostile work environment claim. To be able to be awarded economic damages if you sue, you have to prove not only a hostile work environment, but that you have a constructive discharge claim, i.e. that you took reasonable action to remain employed (which again in this context could be reporting it to the proper management so they might take corrective action to stop the harassment) and, that the conduct was so outrageous, coercive and unconscionable that a reasonable person would be forced to resign rather than continue to endure it.

If You Are Fearful to Report Such Harassment 

If you are the victim of sexual harassment and are fearful to report such harassment because the person you would report it to is the harasser or friends with harasser, or for some other reason, you should call an employment attorney for advice.

If You Are Thinking of Simply Resigning.

If you are thinking simply resigning, you should contact an attorney experienced in workplace harassment before you do so, to explore your legal options in the safest way for you.

What You Can Do

If you are the victim of sexual harassment and are fearful to report such harassment or if you are thinking of resigning, it is important that you consult with an attorney who is experienced in harassment and discrimination. I am an aggressive and compassionate employment law attorney who is experienced in representing victims of workplace sexual harassment, women, LGBT and minorities. 

If you are being subjected to such unlawful workplace discrimination, 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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