As a growing number of employees are finding their voice to speak out on the sexual harassment they’ve experienced, the natural question is “What can I do about it? Can I sue my employer?” Many want to know if they can sue their employers for this conduct. The short answer is “maybe”. While it’s possible to file a lawsuit for damages, there are several factors that must apply in your case to pursue this legal action.
Nature of the Harassment
The first step is to determine whether the conduct in question rises to the level of sexual harassment in the eyes of the law. It’s important to understand that that the law doesn’t define single instances of harassing behavior as sexual harassment. The conduct must be pervasive to such an extent that your work environment is a hostile or extremely unpleasant one. In some cases, a severe and extreme act, such as physical assault, will meet the criteria. For a more in-depth explanation, please read our overview on sexual harassment.
Other requirements for filing a suit against your employer can include the size of the business, timeframe, and who is doing the harassing. Title VII of the U.S. Civil Rights Act is the federal law that addresses these claims. This law governs educational institutions, state and local governments, labor organizations, and private employers that employ a minimum of 15 people. However, individual state law may offer additional protections. In New Jersey, our state’s Law Against Discrimination (LAD) impacts all employers, regardless of size.
Timing can be key as well. NJLAD requires victims to file a claim with the New Jersey Division on Civil Rights within 180 days of the sexual harassment. Should your claim be eligible for litigation, you need to file your case with the court within two years of the instances of harassing behavior.
Finally, when determining whether your employer is legally responsible for the sexual harassment, the position of the perpetrator and the actions of your employer are important. Typically, if the harasser is a supervisor or the employer himself, liability applies. If the guilty party is a co-worker, then employer responsibility hinges upon whether the employer was informed of the harassment but failed to take appropriate action. For proxy situations, where the harasser is in a position to act as the employer – such as the president or CEO – the harasser is individually responsible. This holds true for individuals outside your company, as well, such as a vendor, contractor, or client. This means that your employer would not be liable, and you cannot sue him. You would need to pursue other parties for damages.
Required Steps and “Right to Sue”
Your actions have impact, too. If your company has established policies and procedures for handling sexual harassment claims, you must follow those guidelines to allow your employer to correct the situation. For companies without set procedures, you should make your supervisor aware of the problem – unless that individual is the perpetrator. In that case, take your complaint to his direct supervisor.
Be sure to note and record all instances of harassment for your records. Details are essential, such as the specific nature of the abuse, the date and time, and the names of any witnesses. Keep records on any complaints you make and the responses you receive.
If you’ve given your employer the opportunity to correct the problem, but he’s failed to do so, you may then escalate the claim. In New Jersey, you should file a claim with the Division. This is the governmental entity that can provide you with a “right to sue” letter. This is the documentation you need to sue your employer for the sexual harassment you’ve endured.
If you have been the victim of sexual harassment, our knowledgeable New Jersey Sexual Harassment attorneys can evaluate your claim to help you decide on the best path to justice. We can assist with your Division claim and pursue a lawsuit should that avenue prove futile. Contact us to discuss your case.
Castronovo & McKinney, LLC helps clients with their sexual harassment claims throughout New Jersey including Bergen County, Essex County, Middlesex County, and Morris County as well as the cities Hackensack, Newark, New Brunswick, and Morristown.