Have you been subjected to unwelcomed sexual advances by a co-worker or supervisor at your place of employment? Are you being pressured by a supervisor to engage in unwelcomed sexual relations and been subjected to a change in the terms or conditions of your employment because you refused the sexual propositioning? Has your employer retaliated against you because you complained about his or her inappropriate sexual comments? If the answer to any of these questions is yes, you may have an actionable claim of sexual harassment under the New Jersey Law Against Discrimination.
The New Jersey Law Against Discrimination prohibits sexual harassment at the workplace and in places of public accommodation. The New Jersey Supreme Court first recognized a claim for sexual harassment against an employer in the 1993 landmark case Lehman v. Toys R Us. Unlawful sexual harassment can occur in many different ways and in varying degrees of severity and pervasiveness. Sexual harassment includes unwelcomed sexual advances, a request for sexual relations, verbal or physical conduct of a sexual nature or retaliation for opposing sexual harassment conduct or participating in a sexual harassment investigation. There are several different forms of actionable sexual harassment under the New Jersey Law Against Discrimination, which include hostile work environment sexual harassment, quid pro quo sexual harassment and retaliation.
A hostile work environment based upon sexual harassment occurs when there is conduct at the workplace that is unwelcomed by the person being subjected to it, it occurs because of his or her sex and when a reasonable person of the same sex considers the conduct sufficiently severe or pervasive enough to alter the conditions of employment and create an intimidating, hostile or offensive work environment. New Jersey courts will consider the following four prong test in determining whether an employee has been subjected to a hostile work environment based upon sexual harassment:
- the offensive and/or harassing conduct would not have occurred but for the employee’s gender;
- the offensive and/or harassing conduct was severe or pervasive enough;
- such that a reasonable man or woman believe that; and
- the conditions of employment are altered and the working environment has become hostile or abusive.
A second type of claim of sexual harassment is called quid pro quo sexual harassment. Quid pro quo sexual harassment occurs when the terms or conditions of a person’s employment is based upon his or her submission to a sexual act or when an individual’s submission to or rejection of the sexually harassing conduct by another employee is used as a basis for an employment decision affecting that individual’s employment. In order to prove a claim under the New Jersey Law Against Discrimination for Quid Pro Quo sexual harassment, an employee must establish the following:
- that the employee is a member of a protected class (i.e. a woman);
- the employee was subjected to unwelcomed sexual harassment that others who were not part of the protected class were not subjected to;
- the unwelcomed sexual harassment complained of was based upon the employee’s sex; and
- the employee’s reaction to the harassment complained of affected the terms, conditions, compensation or privileges of their employment.
A third cause of action for sexual harassment is a claim for unlawful retaliation. The New Jersey Law Against Discrimination makes it illegal for an employer to take reprisals against an employee because he or she has:
- opposed any practices or acts of sexual harassment regardless whether he or she was the person subjected to the sexual harassment or
- has or intends to file a complaint, testify or assist in any proceeding in connection with a sexual harassment complaint.
An employee is protected from retaliation if he or she makes a complaint of sexual harassment or participates in an investigation of sexual harassment. If the employee is the person who complained about the sexual harassment, the complaint must be made in good faith and based upon a reasonable belief that sexual harassment has occurred in order to be considered as engaging in protected activity. So long as the employee has made an objectively reasonable and good faith complaint of sexual harassment, the New Jersey Law Against Discrimination prohibits the employer from taking adverse employment actions against the employee for making the complaint.
If the employee is not the complainant, but instead a witness, the standard to show that he or she has engaged in protected activity is lower. Simply participating in an investigation for sexual harassment is enough for a witness to be protected from unlawful retaliation. This is to assure that persons who are participating in harassment investigations, which often is mandatory, are provided strong legal protections against employers who threaten or terminate that person because of what they may or may not have said in the sexual harassment investigation.
Once an employee shows that he or she engaged in protected activity, the court will then analyze whether the employee suffered an adverse employment action. Termination is the most obvious and straight forward way of proving an adverse employment action. However, retaliation can be found through other adverse employment actions that fall short of an actual termination of employment. The test for whether an employee has suffered adverse employment action is whether a reasonable employee would be dissuaded from making or support the charge of sexual harassment. This can include a demotion or transfer to a less desirable job position or location. It can also include a series of relatively minor actions that when viewed as a whole, can constitute unlawful retaliation. Like all other claims of sexual harassment, whether an employee has been subjected to unlawful retaliation is a fact-sensitive inquiry that should be reviewed by an experienced New Jersey sexual harassment attorney.
New Jersey sexual harassment law is complicated and fact sensitive. If you believe you are the victim of a sexual harassment hostile work environment, quid pro quo sexual harassment from a supervisor or unlawful retaliation because you complained of sexual harassment or participated in a sexual harassment investigation, it is imperative that you immediately seek legal counsel and advice from an experienced New Jersey sexual harassment lawyer. Our team of New Jersey Employment Lawyers have successfully litigated claims against small or big companies and are available to discuss the specific facts and circumstances of your potential claim for sexual harassment.