New Jersey sexual harassment Article

SEXUAL HARASSMENT

"It was only a joke."

Sexual Harassment is no laughing matter. "Joking" doesn't justify unwanted touching, unwanted verbal statements or tying business or client achievement and promotion to unwanted behavior.

Sexual Harassment is a very important problem for employers and workers. This newsletter is designed to give you key tips to help you work through the maze of information with clear and accurate facts.

Know the facts, and please call Miller , Miller & Tucker, P.A. if we can help.

Both New Jersey and federal laws protect workers from sexual harassment.

The statutory sources of this protection are the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12, and Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. 200E-2 (a). These statutes make it an unlawful employment practice for an employer to discriminate in compensation, terms, conditions or privileges of employment because of a person's sex. The two statutes are nearly identical in wording but have been subjected to slightly varying interpretations by the federal and state courts. This article will focus on the New Jersey state court interpretations of the New Jersey Law Against Discrimination as it applies to supervisor or co-worker sexual harassment; this article does not deal with the potentially more troubling area of sexual harassment by teachers or among students. The laws are gender-neutral; all references to gender in this article are by way of example only and could refer to either gender as harasser or victim of harassment. A recent U.S. Supreme Court case holds that Title VII applies to same sex sexual harassment (as does N.J. law).

Sexual harassment in the work place can be divided into two categories: Quid pro quo harassment and hostile work environment harassment.

QUID PRO QUO HARASSMENT
Quid pro quo is a Latin expression meaning "one thing in return for another." This can be either an implied or explicit threat or suggestion by a supervisor that if the employee does not accede to the sexual request, the employee will lose his or her job, receive unfavorable performance reviews, be passed over for promotion or suffer some other adverse work consequence. In a quid pro quo case the sexual advances or requests must be unwelcome. The employer (university or company) may be held strictly liable for the conduct of a supervisor who engages in quid pro quo harassment. In other words, regardless of whether the employer was aware of or condoned the supervisor's actions, the employer may be held responsible for the supervisor's harassment

At least one federal court has held that the complaining employee need not suffer an actual job detriment but merely a threatened one. Another federal court has held that there does not have to be a sexual proposition in order to state a quid pro quo claim. For example, a supervisor who engaged in a pattern of sexually abusive and demeaning remarks and conduct and threatened his female subordinates with discharge if they complained to management could be held responsible for quid pro quo sexual harassment.

HOSTILE ENVIRONMENT
This type of harassment occurs when a supervisors or fellow employee harasses an employee because of his or her sex to the extent that the working environment becomes hostile. There are four elements to establish this type of harassment. These are that the conduct:

(1) would not have occurred but for the employee's gender;

(2) was severe or pervasive;

(3) would be offensive to a reason- able person of the same sex as the employee; and

(4) the conditions of employment are altered and the working environment has become hostile or abusive to the employee.

Each of these elements must be present.

Harassment Must Be Gender-Based
In most cases of hostile work environment, the harassing conduct takes the form of unwelcome sexual touching or comments. When the harassing conduct is directly sexual or sexist in nature, such as touching or sexual comments, or statements denigrating the employee because she or he is a member of a certain sex, this will automatically establish the gender based nature of discrimination. The harassing conduct need not necessarily be sexual in nature, but it must in all circumstances occur because of the victim's sex. The offended party must show that the harassment would not have occurred but for his or her gender.

Severe or Pervasive Conduct
The alleged harassing conduct must be either "severe" or "pervasive." "Severe" means that it is sufficiently egregious that one incident alone would be enough to establish a claim. This would require a particularly shocking incident. "Pervasive" means conduct that is more than occasional or haphazard but occurs on a fairly regular basis.

Offensive to a Reasonable Man/Woman
In determining whether harassment was sufficiently severe or pervasive to constitute actionable sexual harassment, the conduct must be offensive to a "reasonable" man or woman. This is an objective community standard and should not vary from case to case. This rules out the complaint of a hypersensitive employee because of his or her responses to conduct that is not, objectively viewed, harassing to the reasonable man or woman.

Defining Terms
Exactly what is the hostile or abusive work environment that will give rise to a cause of action for sexual harassment?

In New Jersey, our Supreme Court has rejected the requirement that an employee must show that the offensive conduct interfered with the employee's work performance or affected the psychological well being of the employee.

If you are an employer, be sure your firm has a sexual harassment policy procedure, and investigate every claim carefully and objectively.

The information expressed above should not be construed as legal advice but merely information on the law that may be of interest to you. Remember, individual legal problems require individual solutions. Please contact Miller, Miller & Tucker, P.A. if we can help.