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Your Right To A Sexual Harassment Free Workplace

Under the federal Title VII of the Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination (LAD) workers are protected from sexual harassment in the workplace. There are two kinds of sexual harassment; (1) quid pro quo –agreement to perform sexual favors to receive a benefit (promotion, raise, continued employment, etc.); or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances.

Showing harassment through a hostile work environment requires a plaintiff to show: (1) objectively, a reasonable person would find such an environment hostile or abusive; (2) subjectively, the plaintiff perceives the environment as hostile or abusive; (3) the hostile environment is so severe or pervasive that someone can’t function or perform work properly; and (4) the hostile work environment was sexually motivated, in other words because of a characteristic protected by Title VII and LAD. There are two ways with which a workplace environment can be considered so hostile that someone can’t function or perform work properly; (1) a single incident occurred that was extraordinarily severe/egregious; or (2) a series of incidents was sufficiently continuous and concerning to have altered the conditions of the working environment.

If an employer has workplace policies in place to prevent and rectify harassment and the employee must take advantage of those procedures before bringing a harassment claim. This is known or referred to as the “Faragher-Ellerth defense”. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Such procedures can include having a Human Resources department which accepts and reviews harassment complaints, and if concluding that harassment took place, acts appropriately against those perpetrating the harassment. However, if an employee does complain about harassment, and management, concluding harassment took place, does not move to rectify, and prevent future harassment, then the employer can be held liable for the harassment which took place.

In Engel v. Rapid City Sch. Dist., 506 F.3d 1118, 1120 (8th Cir. 2007), the Eighth Circuit reversed a summary dismissal when the employer did not stick to its disciplinary decision. There, the plaintiff, Engel, complained to her employer Rapid City School District (“RCSD”) that her co-worker, Herrera, was sexually harassing her. A five-person panel confirmed this to be true and directed that Herrera “undergo counseling to address these areas of concern.” Also, Herrera was no longer permitted to have a master key to buildings, and was required to gain advance approval for any travel away from the building where he worked. Moreover, RCSD directed Herrera to avoid being alone with any female employee whenever possible. Herrera was also informed that “any future complaints of harassment by you will result in your immediate termination of employment,” and that “if there are any additional instances of inappropriate conduct, whether it be touching, verbal or otherwise, your employment will be terminated.”  However, when Herrera continued with his harassing behavior and Engel complained again, RCSD issued a second different letter to Herrera telling him that “any future complaints . . . will result in additional administrative action, up to and including the termination of your employment.” Because RCSD watered down its original hardline disciplinary action, the court remanded to the trial court for determination if RCSD had not sufficiently addressed the sexual harassment claims of Engel.

A statute of limitations is a law setting the maximum time by when a party must initiate legal proceedings.  Failure to adhere to a statute of limitations may bar your right to file a valid lawsuit. Under New Jersey’s LAD, the statute of limitations is two (2) years from the date of the occurrence(s) which give rise to your sexual harassment claim.

If you have been victim of sexual harassment from supervisors and/or other co-workers, you may have a viable legal claim. Call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, we are well experienced in handling discrimination cases and will aggressively seek to discover the evidence required to get your claim to a jury. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.