Sexual harassment law in New Jersey consists of two different forms: (1) Hostile work environment; (2) Quid pro quo. Hostile work environment is a form of sexual harassment that typically consist of either severe or pervasive comments made of a sexual nature, touching in a sexual manner or certain gestures that would suggest a sexually harassing or sexual motive. The employee who is committing the sexual harassment is important under New Jersey Law. If a co-worker is sexually harassing you, you are required to follow the company’s procedure and report the sexual harassment. However, if no such procedure exist or is rarely enforced, the company would still be liable for the sexual harassment. The company upon receiving a complaint regarding a co-worker sexually harassing you, is required to complete a prompt and thorough investigation and make sure that the sexual harassment stops. The company would not be liable until the sexual harassment occurred again. However, if the sexual harassment is done by a manager, the company may be liable for the sexual harassment by the manager due to the authority given to the manager by the company. Quid pro quo is a type of sexual harassment where either a manager or co-worker insists that you performed a sexual favour in return for a certain job assignment, improvement of job conditions or anything else that would be a requested exchange of employment benefits as a result of providing sexual favours. This harassment is also illegal in New Jersey. It is the least common though.
The Sexual Harassment Must Be Unwelcome
Under New Jersey Law, it is required that any sexual statements or harassments be unwelcome. This means that if you were consenting or were an active participant in any of the sexual harassment or sexual comments, then you would not be entitled to any relief from the sexual harassment. We typically see this in the situation where there are jokes being made and both sides are making the jokes. If you were to also make jokes in return for someone making a joke to you, you may not have a claim for sexual harassment.
Sexual Harassment Is Protected under New Jersey’s Law against Discrimination
New Jersey Law against Discrimination prevents sexual harassment under hostile work environment theory and gender discrimination. There is no statute in New Jersey that specifically prevents sexual harassment. However, it is protected under the New Jersey Law against Discrimination as gender discrimination, gender harassment and falls into the category of hostile work environment.
What Conduct is Considered to be Severe or Pervasive Conduct?
New Jersey law requires that the sexually harassing behavior be “severe or pervasive.” The term “pervasive” means that an isolated occurrence of sexually harassing behavior may rise to an actionable claim for sexual harassment unless the isolated occurrence is considered to be “severe.” “Severe” conduct is any extreme conduct such as rape or attempted rape (which would also be a violation of criminal law). However, the most common type is “pervasive” wherein there are numerous comments, groping or touching that would not rise to the level of “severe” conduct that when looked at as a whole would be considered sexual harassment – typically numerous sexual comments, touching or other sexually explicit emails/communications. Our attorneys will review this information with you for free to determine whether the harassment could be considered either “severe or pervasive.”
Sexual Harassment by a Supervisor or Owner
If you were sexually harassed by a supervisor or owner of the company, the company along with the harasser may be liable for damages resulting from the sexual harassment. This is different than co-worker sexual harassment based on the agency theory of liability. A supervisor or owner is provided with the authority to regulate the work environment and the company is, therefore, liable for the conduct of the supervisor or owner. The supervisor or owner may be liable based on an “aiding and abetting” theory.
The Sexual Harassment Affects Your Work
You cannot be retaliated against for refusing the sexual advances of a co-worker or supervisor. You also cannot be fired, transferred, lose your job duties, suspended or in any other way punished as a result of refusing the sexual advances of your co-worker or supervisor.
Potential Damages for a Sexual Harassment Case
If you are the victim of sexual harassment, you will entitled to all available damages pursuant to the New Jersey Law Against Discrimination. That means that you can receive compensatory damages resulting from the sexual harassment. Damages are typically based on lost wages (in the event that you are unable to continue working or are retaliated against for complaining), emotional distress damages and punitive damages. Emotional distress damages are based on the distress that you suffered. A jury will determine this amount of damages and it is impossible to try and predict what a jury will award you. We have tracked all jury verdicts going back to 1994 and can provide you with an estimate based on prior verdicts. However, your emotional distress damages will be based on the conduct, whether you sought any treatment and how you were affected by the sexually harassing conduct (loss of sleep, vomiting, etc.). Finally, a jury can award you punitive damages. These damages are provided to punish the employer or employee and make sure that this type of conduct never happens again.
What Should You Do If You Are Being Sexually Harassed?
You should always report the sexual harassment to your employer. Make sure that you make a report in writing so that your employer doesn’t deny that you ever brought it to their attention. You should also look at any handbook, policy or other guidelines utilized by your employer. You should keep records of the harassment and keep notes of the time it took place, the location, people present, and the specifics of what was done or said.
Can You File a Lawsuit Right Away?
In New Jersey, you are not required to file with the EEOC or DCR before filing a lawsuit. This means that you can take you sexual harassment lawsuit right to court. If you would like to avoid court for the time being, you can file with the EEOC or DCR. Our experience has been that the EEOC or DCR typically issues a right to sue letter and you are then required to hire an attorney or file a lawsuit on your own.