Articles Posted in Hostile Work Environment

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America is in the middle of a social reckoning. Brave women are standing up and telling their stories of sexual harassment, assault, or other abuses by men in positions of power through use of the hashtag, #MeToo. The #MeToo movement, focused primarily on sharing stories of abuse, evolved into a call for action and female empowerment aptly named #TimesUp.  Although there has long been legal recourse found in our federal and state law for victims of sexual harassment in the workplace and/or victims of retaliation for reporting it, women today are being believed and vindicated on a larger scale than ever seen before. Here in New Jersey, our Law Against Discrimination (LAD) employees protects women and men alike from sexual harassment in the workplace. There are two kinds of sexual harassment: (1) quid pro quo, which is an agreement or an offer to receive a benefit (promotion, raise, continued employment, etc.) in exchange for the performance of sexual favors; or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances. Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). Any person who aids, abets, or otherwise assists in the harassment is in violation of the LAD. N.J.S.A. 10:5-12(e).

To prove the existence of a hostile work environment under the LAD, an employee must demonstrate that the conduct in question was unwelcome, that it occurred because of his or her sex, and that a reasonable person of the same sex would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. Id.  However, a victim of harassment should be mindful that the LAD is not intended to be “a ‘general civility’ code” for conduct in the workplace.'” Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004) certif. denied, 183 N.J. 213 (2005). “‘[D]iscourtesy or rudeness should not be confused with [protected status-based] harassment.'” Ibid.

The LAD expressly protects workers from retaliation for having reported sexual harassment of themselves or coworkers. This includes retaliation in the form of a hostile work environment, demotion, failure to promote, transfer, cut in pay or benefits, unpaid suspension, wrongful discharge, or even “constructive discharge”.  A constructive discharge occurs when an employer takes no official action, but creates a work environment so hostile and unbearable that a reasonable employee would have no choice but to resign.

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Under Title VII of the Civil Rights Act of 1964 and under New Jersey’s Law Against Discrimination, it is unlawful for an employer to discriminate against an employee with respect to his/her compensation, terms, conditions, or privileges of employment because of the employee’s sex or gender. In such a circumstance, an employer is liable for a hostile work environment created by one or more of its supervisors if the employee suffering the discrimination establishes that: 1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of a respondeat superior relationship between the harasser and the victim employee. “Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 619 (1993).

To establish the existence of respondeat superior liability – namely, employer liability for a supervisor’s unlawful actions or inactions – a victimized employee needs to show that the supervisor acted as the employer’s agent. Usually, to be considered an employer’s agent the worker needed to have acted within the scope of employment. See Restatement (Second) of Agency § 219(2)(d) (Am. Law Inst. 1958). However, even if the supervisor acts outside the scope of employment, the employer can still be found liable. This is because under § 219(2)(d) of the Second Restatement, an employer may be liable when employees act outside the scope of their employment if they were “aided in accomplishing the tort by the existence of the agency relation.” Stated differently, even acting outside the scope of their employment, if the employee used their position as the agent of the employer to inflict harm against a subordinate the employer can be liable.

Recently the Third Circuit in, Moody v. Atl. City Bd. of Educ., No. 16-4373, 2017 U.S. App. LEXIS 17191, at *1 (3d Cir. Sep. 6, 2017), reversed and remanded to trial a district court’s dismissal of a complaint brought by a temporary fill-in employee against a public entity employer alleging her or foreman sexually harassed her.  Specifically, a custodian foreman named Marshall worked for the Atlantic City Board of Education (“ACBOE”) and oversaw scheduling the substitute custodian hours, and demanded sexual favors from Plaintiff Moody, a temporary school custodian, in exchange for favorable work schedules. When Moody refused Marshall’s demands, Marshall stopped scheduling Moody for work. Initially, the district court dismissed liability against the ACBOE finding there was no respondeat superior relationship because Marshall was not Moody’s supervisor, and therefore, the ACBOE was not liable for what Marshall had done. However, the Third Circuit reversed, concluding Marshall was in fact Moody’s supervisor because Marshall was the one who controlled whether Moody would work or not. Since Moody was a temp/fill-in worker Marshall controlled whether Moody worked at all – not  just (what an average foreman controls) deciding which hours and days she worked – this gave Marshall “supervisor” status. The court then held “[w]hen a supervisor takes a tangible employment action against a subordinate, the employer is vicariously liable because the injury could not have been inflicted absent the agency relation.” Since Marshall used his position as foreman under the ACBOE to demand sexual favors in return for providing Moody work, the ACBOE was found to be liable for Marshall’s actions.