Sexual Harassment

Sexual harassment isn’t limited to making inappropriate advances. In fact, sexual harassment includes any unwelcome verbal or physical behavior that creates a hostile work environment. Examples include, but are not limited to, the following:

• Sharing sexually inappropriate images or videos, such as pornography, with co-workers
• Sending suggestive letters, notes, or e-mails
• Displaying inappropriate sexual images or posters in the workplace
• Telling lewd jokes, or sharing sexual anecdotes
• Making inappropriate sexual gestures
• Staring in a sexually suggestive or offensive manner, or whistling
• Making sexual comments about appearance, clothing, or body parts
• Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person
• Asking sexual questions, such as questions about someone’s sexual history or their sexual orientation
• Making offensive comments about someone’s sexual orientation or gender identity

These are just some examples of sexual harassment. Any action that creates a sexual hostile environment is considered sexual harassment. The attorneys at Mashel Law will not hesitate to file a valid sexual harassment claim against an offending employer and co-worker(s).

The New Jersey Law Against Discrimination, (LAD) prohibits employment discrimination/hostile work environment against any person by reason of sex amongst other protected characteristics. Harassment of an employee because of the employee’s gender is prohibited by the LAD. All employees have the right to a workplace environment that is free from discriminatory intimidation, harassment, and hostility, because of their sex.

Our courts have recognized two types of sexual harassment claims. One is quid pro quo (“this for that”) sexual harassment which occurs when an employer attempts to make an employee’s submission to sexual demands a condition of his or her employment. It involves an implied or actual threat that if the employee does not give into the sexual demands, he or she will lose his or her job, receive unfavorable performance reviews, be passed over for promotions, or suffer other adverse employment consequences. The other is hostile work environment sexual harassment which occurs when an employer or fellow employees harass an employee because of his or her gender to the point at which the working environment becomes hostile.

Our New Jersey Supreme Court recently expanded the definition of “supervisor” to include not only persons granted authority by the employer to make tangible employment decision, but also those individuals who are placed in charge of a victimized employee’s day-to-day activities. In cases of supervisory sexual harassment, the employer is directly and strictly liable for all damages. An employer can only be held liable for non-supervisory, co-worker sexual harassment, or sexual harassment by a third party (such as an independent contractor), when the employer knew or should have known about the alleged harassment and failed to take prompt and adequate remedial action.

An employer can also be held liable for a sexually harassing work environment caused by either a supervisor or non-supervisory co-worker when the employer has negligently failed to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training and/or monitoring mechanisms. However, when an employer does have in place well publicized anti-harassment policies inclusive of a victim reporting process, an employer may be able to escape liability for sexual harassment if the victimized employee unreasonably fails to take advantage of any preventative or corrective policies or procedures provided by the employer to rid the workplace of sexual harassment.

Remedies for having been sexually harassed includes hiring or reinstating the harassment victim, disciplining, transferring, or firing the harasser(s), providing back pay and/or front pay, and taking preventative and remedial measures at the workplace. An employer will be liable for compensatory damages such as emotional distress damages if the employer’s conduct was negligent or reckless. An employer can be liable for punitive damages in the event of actual participation by upper management or willful indifference. Additionally, for a claim brought under LAD, the prevailing party plaintiff may be awarded reasonable counsel fees.

If you believe you or a coworker has been or is the victim of sexual harassment in the workplace, do not hesitate to contact the lawyers at Mashel Law, L.L.C. Mashel Law located in Marlboro, New Jersey, is dedicated exclusively to protecting the rights of employees.