Attorneys Robert W. Smith and Christopher J. Eibeler

#MeToo Law Center

Sexual Harassment #KnowYourRights Center

All New Jersey employees have the right to work in employment that is free of sexual harassment. The New Jersey Law Against Discrimination provides workers strong protections against workplace sexual harassment and provides for stiff penalties to employers who cause harm to their employees for failing to have effective anti-harassment policies in place to prevent unlawful discrimination. It is important for all workers to know their legal rights and to speak out when they see or hear of incidents of sexual harassment at their workplace.

#MeToo Movement

The #MeToo movement has empowered both women and men to bring their experiences of sexual harassment and sexual assault to the public. The phrase “Me Too” is widely accredited to a social activist and community organizer, Tarana Burke, who began using the phrase on her MySpace page beginning in 2006. The hashtag “MeToo” and its corresponding movement began spreading virally throughout social media in 2017 in response to the large number of public incidents of sexual abuse and sexual harassment of famous people, such as Harvey Weinstein, Bill O’Reilly, Roger Ailes and many others. The #MeToo Movement continues to bring awareness of the systemic sexual harassment problem that exists in far too many industries and provides victims with greater confidence to bring issues of sexual harassment to the attention of their employers or in a court of law.

Employers are Responsible for Preventing Sexual Harassment

While the #MeToo movement will continue to play a pivotal role in publicizing incidents of sexual harassment, it has never been more important for employers to institute effective anti-harassment policies that prevent workplace sexual harassment. Effective anti-harassment policies are proven to create a workplace culture that prevents sexual harassment from occurring at the workplace. Employers who maintain effective anti-harassment policies will conduct fair, prompt and thorough investigations of complaints of sexual harassment and take swift remedial measures if sexual harassment occurs at their workplace. Employers who have strong anti-harassment policies in place also have a greater chance of avoiding or limiting liability when they are unaware that sexual harassment occurred at their workplace and the employee suffers no tangible employment action resulting from the sexual harassment.

Employees Have a Role in Stopping Sexual Harassment

Employees also play an important role in eradicating the cancer of workplace sexual harassment. An employee who is subjected to workplace sexual harassment should immediately complain to his or her supervisor, human resources representative or other person designated to accept complaints of sexual harassment. Moreover, any employee who learns that another employee is being sexually harassed should also immediately inform the employer through the same reporting structures. Supervisory employees must undergo sexual harassment training so they understand their duties and responsibilities when they receive a complaint of sexual harassment. Other employees should, at minimum, be offered the opportunity to undertake sexual harassment training. While it may feel daunting to inform your supervisor, human resource manager or other designated representative that you have been sexually harassed at work, the law protects victims of sexual harassment from being retaliated against for engaging in such protected activity.

What is a Claim of Sexual Harassment under New Jersey Law

There are several different claims an employee can have under the New Jersey Law Against Discrimination and other state laws concerning workplace sexual harassment.

Hostile Work Environment: A hostile work environment exists when the harassing behavior of a person or group of persons within a workplace creates an environment that is difficult or uncomfortable for another person to work. In order for a person’s sexual harassment hostile work environment to be actionable, the complaining employee must prove that the harassment (1) would not occur but for the employer’s sex; and it is (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. Click here to learn more about New Jersey law concerning hostile work environment.

Sexual Harassment Retaliation: A claim for unlawful retaliation based upon a sexual harassment complaint or harassment investigation first depends on whether the employee is the persons complaining or participating in a sexual harassment investigation. In order to be considered in engaging protected activity as a complainant of sexual harassment, the person’s complaint must be reasonable and made in good faith. On the other hand, any person who participates in a sexual harassment investigation is considered engaging in protected activity simply upon the fact that they are participating in the sexual harassment investigation. In both cases, if the employee suffers any adverse employment action and suffers damages as a result, he or she may have a claim for sexual harassment retaliation. Click here to learn more about New Jersey law concerning unlawful retaliation.

Quid Pro Quo Sexual Harassment: A claim for quid pro quo sexual harassment arises when an employee is subjected to unwelcomed sexual harassment that affects a tangible aspect of his or her compensation, terms, conditions of privileges of employment. The employee’s acceptable or rejection of the sexual harassment or sexual proposition by another employee must be an expressed or implied condition to the receipt of a job benefit or the cause of a tangible job detriment. If the employee can show that he or she was deprived an employment benefit for refusing to engage in the sexual act or proposition, he or she will be able to prove a claim of quid pro sexual harassment. Click here to learn more about New Jersey law concerning quid pro quo sexual harassment.

Constructive Discharge: A claim for constructive discharge is demonstrated when the employee can show that the sexual harassment conditions of the employment have become so intolerable that a reasonable person subjected to them would resign. This is a very high standard that requires the employee to demonstrate that he or she did everything in their control necessary to remain employed rather than to simply quit the job. The standard for a constructive discharge requires more egregious conduct than is necessary to establish a hostile work environment. Click here to learn more about New Jersey law concerning constructive discharge.

Sexual Assault: A single incident of a sexual assault at work may be enough to establish the severe or pervasive standard for a hostile work environment and/or an intolerable work environment necessary for a constructive discharge. An employee who is a victim of sexual assault at work or in a place of public accommodation may have a claim for a hostile work environment or hostile public accommodation environment for the single incident depending on its severity. A victim of sexual assault may proceed with a civil or criminal complaint against the culprit.

Intentional Infliction of Emotional Distress: A claim of intentional infliction of emotional distress based upon workplace sexual harassment if the complained-of conduct is so outrageous in character, and so extreme in degree, goes beyond all possible bounds of decency, and is regarded as atrocious, and utterly intolerable in a civilized community.

Notable New Jersey Sexual Harassment Cases

The New Jersey Law Against Discrimination is considered one of the furthest reaching laws against sexual harassment in the entire country. New Jersey law continues to be at the forefront of providing employees with some of the strongest legal protections against sexual harassment. While there are many state and federal reported cases involving claims of sexual harassment, the New Jersey Supreme Court has rendered some of the most significant sexual harassment cases that are viewed by not just New Jersey judges and litigants, but by everyone in the world in the evolving area of sexual harassment law.

Lehmann v. Toys ‘R’ Us: Considered the landmark case in New Jersey sexual harassment law, the Supreme Court held in 1993 that an employer may be liable for sexual harassment if they are negligent in allowing a hostile work environment to exist at the workplace. Lehman v. Toy ‘R’ Us was the first New Jersey case to create the standards in which an employee can sue his or her employer for sexual harassment. The Supreme Court first created the legal framework for victims of sexual harassment to purse claims for quid pro quo sexual harassment and hostile work environment sexual harassment. Click here to learn more about the New Jersey Supreme Court’s decision in Lehmann v. Toys ‘R’ Us.

Gaines v. Bellino: This case was decided in 2002 and provided much needed clarification concerning an employer’s liability for sexual harassment by establishing a framework to determine whether an employer has an effective anti-harassment policy. The New Jersey Supreme Court outlined five factors to be used in determining whether an employer’s anti-harassment policy is effective as a matter of law, which are as follows: (1) formal policies prohibiting workplace harassment; (2) the existence of both informal and formal complaint structures for the use of all employees; (3) mandatory anti-harassment training for supervisors and managers and anti-harassing training be made available to all employees; (4) the existence of monitoring mechanisms to check the effectiveness of the anti-harassment policy and complaint structure; and (5) an unequivocal commitment from the highest level of the company that harassment is not be tolerated, and demonstration of that policy commitment by consistent practice. Click here to learn more about the New Jersey Supreme Court’s decision in Gaines v. Bellino.

Aguas v. State of New Jersey: In this case decided in 2015, the New Jersey Supreme Court held than an employer can avoid being held negligent for sexual harassment that occur at its workplace if they can show (1) that it maintains a strong anti-harassment policy and effective reporting mechanisms for complaints of sexual harassment and (2) the employee unreasonably failed to take advantage of the employer’s anti-harassment policy and reporting procedure. In addition, for purposes of vicarious liability claims against employers for sexual harassment, the New Jersey Supreme Court defined the term “supervisor” as a person who has the authority to (1) take or recommend tangible employment actions that affect the complaining employee’s employment or (2) to direct the complaining employee’s day-to-day workplace activities. Click here to learn more about the New Jersey Supreme Court’s decision is Aguas v. State of New Jersey.

New Jersey Sexual Harassment Lawyers

If you or a family member have been subjected to any form of sexual harassment, it is imperative that the potential claim is reviewed by an experienced sexual harassment attorney. An investigation into a claim of sexual harassment is inherently a complicated inquiry and can required extensive resources and time. Time may be of the essence in reviewing a claim of sexual harassment in order to provide legal advice and counsel concerning a victim of sexual harassment’s options. Our New Jersey sexual harassment lawyers are well-versed in the area of sexual harassment and are available to discuss the facts and circumstances of your potential claim of sexual harassment.

DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Client Reviews
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We had a wrongful termination issue combined with a denial of unemployment insurance. Chris Eibeler was our primary attorney. His partner Bob Smith also consulted and gave us good advice. They were both so kind, caring, and professional. They guided us though a very tough time and a positive outcome versus a prior employer. They were also able to reverse our denial of unemployment insurance. I cannot recommend Smith and Eibeler highly enough. The entire staff is very professional, personable, and caring. Tom Wilson
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I went to Smith Eibeler LLC for a last minute unemployment matter. Chris, Diane and his staff were very professional and easy to talk to. They provided knowledgeable insight and also kept me in the loop with the what was happening. I would not hesitate to go to him again. John Jung
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Chris Eibeler (and the whole team) is very knowledgeable in all aspects of employment/unemployment here in NJ. They break down the most difficult aspects of the law, which allows you to conceptualize and better understand the complexities of the NJ Labor & Employment system. Smith Eibeler should be your first call regarding any Employment, workforce, or Labor questions here in New Jersey. I highly recommend them. Brian Allen
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I approached Chris Eibeler regarding an unemployment case in early 2016. Him and his staff are some of the most professional people I have ever dealt with. The process took a while, but his approach to hard questioning helped me win my case. He knows how to get the job done and I am glad I went to him. I would recommend him to anyone in the future who asks for a lawyer. Thank you Chris! Tim F.
★★★★★
I highly recommend the office of Smith Eibeler for employment related issues, particularly anything related to restrictive covenants or post-employment contracts. I found Smith Eibeler via the web and cannot believe how fortunate I am to have found them. My case was handled by Bob Smith who represented me in a potential lawsuit by my former employer for violation of a post-employment contract (not a restrictive covenant per se). Bob was professional, friendly, understanding, and above all extremely helpful. Bob helped me avoid a lawsuit and was extremely knowledgeable in this field. I was thoroughly impressed with his prowess. Hopefully I will never have a legal issue related to employment again, but if I do, I will not hesitate to retain Smith Eibeler again! Gavin Tully