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.