The New Jersey Law Against Discrimination (NJLAD)

The New Jersey Law Against Discrimination (NJLAD) makes it unlawful to subject people to differential treatment based upon the characteristics that make up a particular individual. These are called the specified protected categories. The NJLAD make it unlawful to harass or discriminate on the basis of race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership status, affectional or sexual orientation, perceived sexual orientation, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status.
Harassment of an employee on the basis of a protected characteristic under the NJLAD is prohibited. All employees have the right to a workplace that is free of discriminatory intimidation, harassment, and hostility.

Harassment/Sexual Harassment Summary

All claims of harassment and sexual harassment should be immediately investigated by the employer, in the same manner as other employee complaints. If the investigation confirms the allegations made, immediate corrective action should be taken, including counseling and if appropriate, suspending, demoting, or discharging the offender.

Hostile Work Environment

Hostile work environment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her protected characteristic. Such conduct creates an unlawful work environment when it is severe or pervasive enough to make a reasonable person of the employee’s gender believe that the conditions of employment have been altered and the working environment has become hostile or abusive.

This analytical framework may be applied to hostile work environments created because of an employee’s race, nationality, creed, disability, gender, or other characteristics enumerated by the NJLAD. For example, racial slurs or offensive comments or jokes about a person’s gender, sexual orientation, dress, culture, accent, race or ethnic background may be severe or pervasive enough to create a hostile or abusive environment that violates the NJLAD.

Sexual Harassment

Sexual harassment consists of unwelcome sexual advances, requests for sexual favors, and/or verbal or physical conduct of a sexual nature that results in an alteration in the conditions of employment. There are two types of sexual harassment, hostile work environment sexual harassment and “quid pro quo” sexual harassment. Hostile work environment sexual harassment involves harassing conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. Quid pro quo sexual harassment involves situations where (1) submission to harassing conduct is made a term or condition of an individual’s employment or (2) the submission to of the rejection of such conduct is used as a basis for employment decisions affecting that individual. The employee must establish that they would have received a job benefit if they accept the harassment or suffered a tangible job detriment because they rejected it. Under both types, the harassing conduct must be unwelcomed and coercive, meaning nonconsensual. In deciding whether conduct constitutes sexual harassment the total circumstances of the employment are examined.

Harassment by Third Parties

Third party harassment refers to the circumstance where another employee, other than the employee suffering harassment, receives a detriment as a result of that harassment. The common circumstance of third party harassment is where co-worker is providing sexual favors for a benefit another should have received. This does not occur when there is a consensual, non-coercive relationship between a supervisor and an employee. It must meet the court’s findings that the environment was so charged with sexual innuendo as to create an atmosphere that discriminates against on the basis of sex that the couple flaunted the nature of their relationship, or that romantic relationships were prevalent in the workplace.

Employer Liability

Employers can be liable for sexual harassment committed by supervisors, non-supervisory employees, and in some circumstances by third parties such as customers or contractors. The test is whether the employer knew or should have known about the conduct, had control over the harasser, and failed to take prompt and appropriate corrective action. An employer can be held liable for hiring or reinstating the victim, disciplining or terminating the harasser, providing front and back pay and taking remedial actions in the workplace. Regarding damages to compensate the employee for the harassment, employers will be responsible for actions taken by the employer in the scope of the employment. The employer will only be liable for actions that occur outside the scope of employment if: (1) the employer intended the conduct; (2) the employer was negligent or reckless; (3) the conduct violated a nondelegable duty of the employer; or (4) the supervisor purported to act or speak on behalf of the employer and there was a reliance upon that purported authority. An employer will be liable for punitive damages for hostile work environment harassment by a supervisory employee only in the event of actual participation by upper management or their willful indifference.

If your employer is sexually harassing you, or failing to take action to protect you from sexual harassment, contact an experienced employment lawyer at Kurkowski Law today.