Sexual Harassment: Not Something You Have To Accept In The Workplace

Tuesday, October 11, 2011

Sexual harassment in the workplace has long been illegal. Title VII of the Civil Rights Act of1964 classifies sexual harassment as discrimination. The specific definition is “unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment.”

The EEOC, the federal agency responsible for policing discrimination in the workplace notes the following: Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser’s conduct must be unwelcome.

It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

While the behavior can be subtle or blatant, it is important to remember it is subjective. If you are made to feel sick to your stomach by discussions in the break-room or at the 19th hole, if the way someone looks at you, or the jokes they tell, make you uncomfortable, it may be sexual harassment.

Retaliation for reporting is sex discrimination, even if the retaliation is not directly aimed at the person reporting. Earlier this year, in Hanan M. North American Stainless, when an employer fired the fiancée of a woman who had filed a sex discrimination charge with the EEOC, the U.S. Supreme Court held that both parties had actionable discrimination claims.

Document. Document. Document.

Employee reporting is essential, because for an employer to be held legally responsible for failing to take reasonable steps to stop or punish the sexual harassment, the employer must be aware of the harassment.

Documentation is critically important. In many cases, it may be he-said-she-said, so your credibility is greatly enhanced if you have a detailed record of time and dates of incidents.

If you have asked the person to stop, or sought help from their supervisors, and the behavior continues, you should promptly consult an attorney experienced in sexual harassment cases. The attorney will advise you as to reporting procedures and the type and quality of documentation you should maintain.

New Jersey’s Law Against Discrimination

The Law Against Discrimination (LAD) is the New Jersey equivalent of Federal Title VII Law. New Jersey employers are strongly encouraged to establish anti-harassment policies, educate employees about the policies, and require prompt reporting of incidents.

If the employer has not provided an effective avenue to complain, or has failed to enforce its anti-harassment policies even if the employer has established them, then a harassing supervisor has unchecked, final control over the victim — and it is reasonable to impute abuse of this power to the employer. New Jersey appellate courts have so held, repeatedly and forcefully.

The courts generally will find an employer liable for “hostile environment” sexual harassment by a supervisor when the employer failed to establish an explicit policy against sexual harassment, did not create an available avenue by which victims of sexual harassment could complain, and did not enforce its existing policies to investigate and remedy the problem.

Those employer failings will give rise to a reasonable inference that the supervisor’s harassing conduct is tacitly approved by upper management, thus triggering liability and the prospect of significant damages and counsel fees to a prevailing plaintiff.

If you or a friend or loved one has suffered an employment crisis involving unemployment compensation, sexual harassment, workplace violence, gender or other discrimination, or wrongful discharge, and you need to speak with an attorney with experience in employment law matters.