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A Victim of Sexual Harassment and Other Intentional Harms May Pursue Both Discrimination and Workers’ Compensation Claims

Lisa is a new probationary employee with a New Jersey company who has been the target of sexually offensive remarks by Doug, a male co-worker.  Doug’s harassing behavior includes, but is not limited to, asking Lisa: a) to sit on his lap; b) what her bra cup size is; c) to wear short skirts to work; d) to have a drink with him after work after she already declined to do so; and e) to take a “selfie” with him at her desk.  Lisa’s complaints to her boss and Human Resources about Doug’s incessant behavior has not stopped his unwelcome antics.  As a result, Lisa finds herself constantly fearful, anxious, sad, irritable, crying; she is distracted and having trouble focusing both at work and home. Her appetite has greatly decreased and she is having trouble sleeping. Lisa went to see her doctor and was informed her blood pressure was elevated and she was suffering from anxiety and depression. In addition to prescribing her medicine, the doctor has recommended Lisa immediately go on disability and consult with a mental health professional. Lisa tells the doctor that as a new employee she will not be eligible for health insurance for another two months, she has no personal savings, and has so far paid very little money into the state disability insurance program. She is both sick and fearful of losing her job and doesn’t know what to do. What Lisa needs to do is to call both an employment lawyer and a workers compensation lawyer.

The employment lawyer will immediately do everything necessary to protect Lisa’s legal interests as a victim of workplace sexual harassment including, if necessary, filing a lawsuit on her behalf asserting claims for violation of New Jersey’s Law Against Discrimination (LAD). The workers compensation lawyer will immediately place the employer on notice that Doug’s unstopped harassment has caused Lisa to suffer mental health injuries arising out of her course of employment and will demand that she immediately receive authorized medical treatment and workers compensation temporary disability benefits. If the employer fails to provide such benefits, the workers compensation lawyer will then file a workers compensation claim petition with the New Jersey Department of Labor and Workforce Development, Division of Workers Compensation Workers and file a motion with the workers compensation court seeking to compel the employer (and its insurance company) to provide Lisa with authorized medical treatment and temporary disability benefits. Assuming Lisa has suffered a partial permanent psychiatric injury, the workers compensation lawyer will eventually petition the workers compensation court to award Lisa money for her disabling injuries.

New Jersey law permits Lisa to file a LAD discrimination claim with the New Jersey Superior Court while at the same time pursuing a workers compensation claim before the New Jersey Division of Workers Compensation. This is because LAD claims and other intentionally caused harms are claims not subject to the exclusivity provision of the Workers Compensation Act.  In 1997, our State Supreme Court affirmed that employees could bring both a workers compensation claim  and a collateral discrimination and/or intentional infliction of emotional harm claim arising out of similar sets of facts and circumstances against the same employer where intentional acts by co-workers or the employer cause psychological disability to the employee. Schmidt v. Smith, 294 N.J. Super. 569, 584 (App Div. 1996) aff’d 155 N.J. 44 (1997) (“If the Legislature had intended workers compensation to be the exclusive remedy for victims of harassment and discrimination in the workplace it would not have provided for a jury trial as well as compensatory and punitive damages.”); Gardenshire v. N.J. Manufacturers Ins. Co., 333 N.J. Super. 219, 230 (Law Div. 2000).

If you, like Lisa, have been victimized at work by sexual harassment or other forms of intentional conduct committed by supervisors or co-workers alike, you may have a viable discrimination and workers compensation claim. At Mashel Law, we are well experienced in handling discrimination, retaliation and workers compensation claims. We will aggressively seek to discover the evidence required to get your claim to a jury. If you believe you have been the victim of unlawful discrimination or retaliation in the workplace, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.