Sexual harassment is not typically about lust or the desire for sex. Rather, at its core its typically about exerting control and domination over subordinates in the workplace. Such is the case involving New York Governor Andrew Cuomo where numerous allegations of sexual harassment, intimidation, and retaliation culminated in his resignation from office following the release of a devastating 165-page investigation report by the New York State Attorney General’s Office. According to Dr. Louise Fitzgerald, a psychologist at the University of Illinois, only about 25 percent of cases of sexual harassment are botched seductions in which the man “is trying to get someone into bed.” According to Dr. Fitzgerald, “[i]n less than 5 percent of cases the harassment involves a bribe or threat for sex, where the man is saying, ‘If you do this for me, I’ll help you at work, and if you don’t, I’ll make things difficult for you.’” The rest she contends is the raw exertion of power and control. Cuomo’s fall from grace is a stark reminder of the critical need to eradicate all forms of sexual harassment from the workplace in accordance with New Jersey’s own Law Against Discrimination (“LAD”).
Under the LAD sexual harassment is a form of prohibited sex discrimination and presents itself in two forms: quid pro quo sexual harassment, where an employer attempts to make an employee’s submission to sexual demands a condition of his or her employment, and hostile work environment sexual harassment. All too often, employees are faced with implicit and explicit threats that they accede to sexual advances or face repercussions. Those who face such retaliatory action for standing up to their harassers and reporting the abusive behavior may find remedy through a separate cause of action under the LAD for retaliation.
Unlike proving a hostile work environment, which requires sexual harassing conduct so severe or pervasive a reasonable person would find the conditions of employment are altered and hostile or abusive, Lehman v. Toys R’ Us, 132 N.J. 587, 603-04 (1993), proving retaliation under the LAD only requires an employee show he or she (1) engaged in a protected activity known to the employer, (2) was thereafter subjected to an adverse employment action, and (3) a causal link exists between the two. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 548-49 (App. Div. 1995). Protected activity includes opposing practices or acts that are unlawful under the LAD, i.e., complaining about or protesting the sexual harassment in the workplace. See N.J.S.A. 10:5-12(d). The employee must show that his or her original complaint – the one that triggered the retaliation – was made reasonably and in good faith. Carmona v. Resorts Int’l Hotel, Inc., 189 N.J. 354, 373 (2007). A retaliation claim under the LAD differs from the more traditional understanding of discrimination in that the underlying wrongful act of the employer pertains not to the complained-of discrimination, but to the unlawful treatment of the employee because that employee exercised a right protected by the LAD.