I. Introduction
Sexual harassment is not only illegal, but it also invites undue hardship for all parties involved, including the person accused and the accuser. Persons accused of sexual harassment could incur individual liability, under our civil and criminal laws. Sometimes, sexual harassment cases involve media coverage, which can be embarrassing for employees and family members of all related parties.
Persons accused of sexual harassment could also face job loss and career advancement difficulties. The laws may cover situations in which co-workers, subordinates, vendors and customers have been sexually harassed.
If a manager or supervisor knows of such conduct and fails to take action, that manager could be responsible for tolerating a hostile work environment.
The bottom line is that all employees should act professionally at all times and treat each other with respect.
II. Applicable Statutes
A. State
New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1 et seq.
B. Federal
Title VII of the Civil Rights Act of 1964, 42 § 2000 et seq.
III. Types of Sexual Harassment
A. Quid Pro Quo
B. Hostile Work Environment
C. Third Party Sexual Harassment
IV. Cases
The Supreme Court of New Jersey, under New Jersey’s Law Against Discrimination, has clarified that there are several criteria in proving whether sexual harassment can be established in order to find an employer liable. Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 603-604 (1993). The Court specifically held that a plaintiff in a sexual harassment action must demonstrate that the “complained of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.” An employer may be strictly liable for equitable damages (e.g., back-pay, promotions, reinstatement) for sexual harassment committed by a supervisor. Agency principles apply to determine whether an employer may be responsible for compensatory damages (e.g., damages for emotional distress).
Sexual harassment need not be sexual in nature. It is sufficient if the complained of conduct has been directed toward someone because of his or her sex.
When a supervisor has subjected an employee to sexual harassment, Defendants are strictly liable for equitable relief. Id. At 626. Defendants are liable for compensatory damages based upon agency principles under 219(1) of the Restatement (Second) of Agency. Ibid.
The Court declared under 219(1) an employee whose supervisory employee is acting within the scope of his or her employment will be liable for the supervisor’s conduct in creating a hostile work environment. Moreover, even in the more common situation in which the supervisor is acting outside the scope of his or her employment, the employer will be liable in most cases for the supervisor’s behavior under the exceptions set forth in § 219 (2).” Id. At 619-620. These sections establish agency liability as follows:
(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct of the consequence, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
Id. Thus, the principles set forth in the Restatement explicitly provide that an employer may be held liable for a supervisor’s conduct in creating a hostile work environment when acting either within or outside the scope of his or her employment.
Sexual harassment need not be sexual in nature. Lehmann, supra, at 602; Muench v. Township of Haddon, 255 N.J. Super. 288 (App. Div. 1992). Rather, “the defining characteristic is that the harassment occurs because of the victim’s sex.” Ibid. In other words, the harassment would not have occurred “but for the employee’s gender.” Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990).
EEOC Guidelines specifically provide that harassment constitutes “verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of [the employee’s protected class,]” “has the purpose or effect of creating an intimidating, hostile, or offensive work environment,” “has the purpose or effect of unreasonably interfering with an individual’s work performance,” includes “[e]pithets, slurs, negative stereotyping, or threatening, intimidating or hostile acts, that relate to …disability” and “[w]ritten or graphic material that denigrates or shows hostility or aversion toward an individual or group because of [the employee’s protected class] and that is placed on walls, bulletin boards, or elsewhere in the employer’s premises or circulated in the workplace.” 29 C.F.R. § 1609.1(b).
It is well-settled that in order for a plaintiff to succeed in proving a hostile work environment, he or she must present a full and complete depiction of the work environment which, when viewed as a whole, presents an image that is intimidating and hostile. Ibid. As a result, both State and Federal Courts recognize that “testimony by employees about discriminatory actions by the defendant-employer similar to those alleged by the plaintiff [are] admissible to prove the employer’s motive or intent to discriminate.” Rendine v. Pantzer, 141 N.J. 292, 309 (1995).
Moreover, an employer may be liable if its investigation into a hostile work environment claim, or any discrimination claim for that matter, is ineffective. Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997). In such case, a plaintiff may discover information relating to an employer’s investigation into such claims, even if conducted by an attorney, and the information is likely not protected by the work product doctrine or the attorney client privilege. Ibid.
Last year, the United States Supreme Court decided two cases under Title VII involving claims of unlawful sexual harassment that created a hostile work environment. In the first, Burlington Industries, Inc. v. Ellerth, — U.S. –, 118 S. Ct. 2257, 141 L.Ed.2d 633 (1998), the Court held that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. 118 S. Ct. at 2270. In such circumstances, the employer is strictly liable for tangible job consequences resulting from the supervisor’s actions. 118 S. Ct. at 2269.
In a companion case decided the same day, Faragher v. City of Boca Raton, — U.S. –, 118 S. Ct. 2275, 141 L.Ed.2d 662 (1998), the Court held, however, that when no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, comprised of two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 118 S. Ct. at 2293.
V. Sexual Harassment Checklist
_____ Sexual harassment policy
_____ Discrimination Policy
_____ Complaint mechanism
_____ Identify several individuals to whom employees can go to in order to notify the employer of possible discrimination
_____ Handling of investigation, prompt and thorough
_____ Remedial measures (counseling, discipline, termination)
_____ Monitoring
_____ Training (training should be conducted every six months or at least annually)