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.
While New Jersey does not mandate employers maintain polices prohibiting workplace harassment, our case law certainly encourages they do. See Aguas v. State, 220 N.J. 494 (2015). Generally, harassment reporting will go through an employer’s Human Resources department. It is important to note that the Human Resources department and its personnel are in place to serve the interests of the employer and assist in minimizing the company’s exposure to liability. Human Resources is not your friend and your interests often do not align with theirs. HR’s responsibility is not to protect you, the employee, but to protect the business. As Lydia Smith a writer for Yahoo Finance UK has put it, “[u]nfortunately, the role of HR is never to protect you and your colleagues. Their priority is to protect the business. And although your boss might be a pig, he’s good for the company’s bottom line.” Ms. Smith’s comments underscore the need for employees experiencing sexual harassment to become intimately familiar with their employer’s anti-harassment policies and harassment reporting procedures, and to follow those policies and procedures when filing a complaint against a workplace harasser.
By adhering to your employer’s harassment complaint procedures, your employer is placed on notice of your good faith belief that you are the victim of sexual harassment in the workplace. While there are other ways of engaging in protected activity (refusing to accept sexual advances, protesting the unlawful activity, seeking advice from an attorney, etc.), following your employer’s reporting procedures and in doing so documenting the who, what, where, and how of the harassment, is typically the best way to ensure your employer takes proactive steps to stop the harassment in its tracks.
What we have and continue to learn from the sexual allegations made against Governor Cuomo is that no boss is above the law. The courts of our state have continually reinforced that New Jersey’s public policy undergirding the LAD is, “nothing less than the eradication ‘of the cancer of discrimination.'” Fuchilla v. Layman, 109 N.J. 319, 334 (1988), cert. denied sub nom. University of Medicine & Dentistry of N.J. v. Fuchilla, 488 U.S. 826 (1988) (quoting Jackson v. Concord Co., 54 N.J. 113, 124 (1969)). Freedom from discrimination is one of the fundamental principles of our society. Lehmann, supra., 132 N.J. at 600.
If you have been or are the victim of sexual harassment in the workplace or have been retaliated against for opposing such harassment, call the attorneys at Mashel Law (732) 636-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to protecting the rights of its employees.