Sexual Harassment

 

There are two kinds of sexual harassment under the New Jersey Law Against Discrimination. One is called “quid pro quo” sexual harassment. Quid pro quo sexual harassment occurs when a supervisor or owner of the company attempts to make the terms of someone’s employment — for instance, a raise, promotion, change in schedule, continued employment — depend upon the employee’s agreement to sexual demands.

The second type of sexual harassment is called “hostile work environment” harassment. This occurs when a supervisor, owner or co-worker creates a sexually charged environment. Common instances involve sexual comments or physical touching. Offensive comments can be spoken, written, or pictorial. It is not uncommon for cartoons to be involved in hostile environment cases. And as society has transitioned to more and more electronic communications, the source of a hostile environment can arise from e-mail, text messages, Facebook and social media posts, and other methods of communication. Under New Jersey law the offensive conduct must be either “severe” or “pervasive.” When pervasive, it must be unwelcome and happen with some regularity. However, when the conduct is so extremely offensive as to be considered severe, it need only happen one time.

Both quid pro quo and hostile environment harassment usually involve a power relationship. That is, the harasser is usually someone higher in the business structure than the victim so that he can credibly threaten the victim with an adverse employment action if she does not give in to his demands. The standards are different if the harasser is a co-worker of the victim and not a supervisor. Relevant considerations are whether the victim had previously complained about the sexual harassment and the conduct continued after the complaint. Whether the employer had a policy in place to prevent sexual harassment is a major consideration, and as important, whether it was enforced by the company. Finally, past practices of the employer are relevant if there are earlier claims of sexual harassment that were ignored or not dealt with appropriately.

There are common misconceptions about hostile environment harassment. Many people believe, for example, that an abusive boss automatically creates a hostile work environment. While that may be true in the colloquial sense, it is not true legally. If the difficult boss is just difficult, but does not attack people based upon a protected characteristic like gender, his conduct is not necessarily hostile in the eyes of the law.

While sexual harassment is usually thought of as something that men do to women, this is not necessarily true in the eyes of the law. Women supervisors can harass male employees. Neither is sexual harassment limited to heterosexual conduct. The law recognizes harassment when men harass men, or women harass other women.

Finally, while “harassment” is usually thought of in the context of sexual harassment, it is not necessarily limited to that. For instance, the courts in New Jersey have recognized a legal claim for harassment based upon race.

As you will see from the brief description above, the law of harassment is complex, and whether a case exists depends on the precise facts involved. The best way to know whether you have a harassment claim is to speak with an experienced employment lawyer and to have that conversation as soon as you think that harassment has taken place.