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Thursday, December 14, 2017

Gender Stereotyping at Work, If You Experience Same Sex Harassment but Think It’s Not Sexual in Nature

Persons may wonder if harassment is actionable, when they are being ridiculed or otherwise harassed at work by members of their same sex when they do not perceive the harassment as necessarily being “sexual” in nature,  i.e., they do not feel like they are being sexually “hit on” by the harasser, and they do not perceive it as the harasser being sexually or otherwise attracted to them.

The New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq., (NJLAD) protects both men and women and bars both homosexual and heterosexual  harassment of New Jersey employees. The victim does not have to be of the opposite sex from the harasser. The harasser may be the same or different gender from the victim. Same sex harassment from co- employees does not diminish the severity of the harm it produces.

The current amended NJLAD statute now specifically includes among its protected classes “affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression.”

For the prohibition of workplace sexual harassment to fall under the protective umbrella of the NJLAD, the harassment does not have to be “sexual” in nature in the sense of how many persons interpret that word. The employee being harassed does not have to perceive it as the harasser being sexually or otherwise attracted to them. This holds true whether the harassment may be homosexual or heterosexual harassment and whether or not the victim is same or different gender from the harasser.

The critical analysis is whether the person treats a member or members of one sex differently from members of the other sex. The difference could be based on gender stereotyping or a bias against one sex: the victim and the harasser may both be female or both be male where harassment is based on the victim's sex when the harasser does not treat employees of the opposite sex the same way. 

An employee who is sexually harassed at work because of that employee's sexual orientation or because the employee is perceived or presumed to be of a certain sexual orientation has remedies under the NJLAD. This prohibition against sexual harassment includes within its scope, any sexual harassment including discrimination based on gender stereotyping, such as females should be sufficiently “feminine” or act a certain way because of their sex, or that males should act sufficiently “masculine” and not be “effeminate.” The protected classes of “gender identity or expression”, which are now listed in the statute, were not always specified in the statute.

Whether or not a hostile environment based on gender stereotyping sexual harassment was in violation of NJLAD was not as clear as it now, particularly, when was harassment of heterosexuals by other heterosexuals. 

In 1996, a hospital worker filed suit under the NJLAD and the results demonstrated that the expanse of the NJLAD contained a legislative intent to encompass harassment based on gender stereotyping.

In this matter a male employee’s male co-workers in the hospital mocked and ridiculed him for what they perceived as his being not acting sufficiently masculine. In 1993, male employee’s male co-workers in the Receiving Department began to harass him, apparently because they believed him to be a virgin and that therefore thought that he was not sufficiently “masculine”. 

His co-workers confronted him with slang terms, and negative sexual innuendos that he did not engage in sex with women. The co-workers also placed pictures with captions on his  desk and in his locker which made reference to plaintiff's lack of sexual relations with women. These pictures included lewd captions and jokes.

At no time however, did the co-workers suggest plaintiff's sexual orientation might be other than heterosexual, and there is no evidence that the plaintiff was homosexual or bisexual.

The harassed employee made numerous and continuous complaints regarding the harassment to his co-workers, to his immediate supervisors, and to the hospital Personnel Department. As is too often the case, the harassment continued nevertheless, and eventually the employees of the other departments in the hospital also began to harass employee about his lack of sexual relations with women.

In this matter, Zalewski v. Overlook Hosp., 300 N.J. Super. 202 (1996), the harassed employee, plaintiff, filed a suit for damages based on a hostile environment in violation of NJ LAD based on gender stereotyping sexual harassment. The Defendant employer moved for summary judgment, contending that NJLAD was inapplicable to the facts of the case because it did not encompass the sexual harassment of heterosexuals by other heterosexuals. The Defendant employer lost the motion for summary judgment, and the Court held that NJLAD encompassed same sex discrimination based on gender stereotyping, and that employee plaintiff's cause of action based on based on gender stereotyping sexual harassment the NJLAD was within the scope of the NJLAD.

In this matter, in its Opinion, the Court stated at 204-205:

The New Jersey LAD prohibits employment discrimination based on sex, or affectional or sexual orientation. The pertinent sections of that statute provide:

It shall be unlawful employment practice, or, as the case may be, an unlawful discrimination:

(a) For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, sex . . . of any individual . . . to refuse to hire or employ or to bar or to discharge . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment . . . .

[N.J.S.A. 10:5-12.]

Affectional or sexual orientation" is defined as follows:

"Affectional or sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation. (emphasis added)

[N.J.S.A. 10:5-5(hh).] 

The Court found that the co-workers harassed the employee because they believed him to be a virgin and effeminate and therefore a jury could therefore conclude that his male co-workers discriminated against him because he was a male who did not behave as they perceived a male should behave, i.e., his co-workers discriminated against him based on  gender stereotyping. The court held that the male-on-male sexual harassment in the instant matter was a form of discrimination prohibited by the NJLAD and as such is actionable.

Since this 1996 decision, the NJLAD has been amended several times to make clear in the statutory language the breadth of its scope of protected classes, and the statute now specifically includes gender identity or expression. The current version of the NJLAD states in part:

10:5-12. Unlawful employment practices, discrimination.

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual...

What You Can Do

I am a caring and aggressive attorney who is experienced in workplace discrimination law. If you are being harassed at work by someone of the same or other sex, and you think it may be because of gender stereotyping or a bias against your sex, gender or perceived or actual sexual orientation, you should consult with an attorney who is experienced in such discrimination law.

Every situation is fact specific, and if find you are working in such a hostile work environment, or that you may be the target of an employer's illegal sex, sexual orientation or gender identity 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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