Revelations of pervasive sexual harassment by movie mogul Harvey Weinstein has opened the floodgates of social awareness and condemnation of sexual harassment in America. While federal law protects women, minorities and others from harassment and discrimination at work, the New Jersey Law Against Discrimination is a strong state law that affords women and other “protected classes” of persons legal remedies when they are harassed or discriminated against in employment, housing, public accommodations, and in business contracts.
Sexual harassment under NJ law occurs in two ways: quid pro quo, which involves requests for sexual favors; and, more commonly, creation of a “hostile work environment” in which no reasonable person can be expected to work. In the latter case, a co-worker or supervisor harasses a woman by directing sexual remarks to her in a course, outrageous manner on multiple occasions. Mere rudeness does not qualify, so that when a male worker refers to a female co-worker as “babe” it is inappropriate but not illegal. However, referring to a female co-worker consistently as “babe” and asking when she is going to finally go to bed with him is intolerable conduct that violates the law by creating a hostile environment at work.
Harassment (or discrimination based on race, religion, etc.) by a co-employee does not necessarily mean that the victim can sue the employer under NJ law. If the harassment is by a supervisor, then the employer may be found liable to the victim. However, if a co-employee does the harassing, the victim must promptly report the misconduct to the employer. If the employer has knowledge of the misconduct and takes little or no action to prevent further harassment, then the employer may be found liable under NJ law for failing to take the necessary action. Reporting the harassment to the employer is the tricky part, as many human resources departments fail to take sexual harassment complaints seriously; consultation with an attorney immediately after the harassment but before it is reported can be valuable in this regard.
As society increasingly accepts sexual harassment complaints as possibly, if not probably true, employers will hopefully take these complaints more seriously and act decisively. Employers should take preventative measures by requiring all workers to undergo some of the very good online training courses available to businesses who are serious about this important issue.