The New Jersey Law Against Discrimination creates a very broad umbrella of protections for employees in the State of New Jersey. Within that umbrella are a variety of causes of action. One of the causes of action which can arise under NJLAD is a discrimination or sexual harassment case. There are two types of sexual harassment cases.
The first type of sexual harassment is severe and pervasive harassment of a sexual nature. The other sexual harassment cause of action is what is called quid pro quo, which is a bargaining phrase (i.e. if you give me this, I’ll give you that).
An example of quid pro quo sexual harassment would be if a boss or someone in a position of management, who promises certain employment favors or allows you to keep your job conditioned that promise on some kind of sexual relationship with him or her. Another example would be if one employee forced themselves on another employee by threatening certain conditions of employment like keeping their job only if they accepted sexual propositions and/or sexual relationships.
The other form of sexual harassment is the more pure everyday harassment of someone by either sexual behavior or offensive words that the law says must be severe and pervasive. Some factors that determine whether something is severe and pervasive include how often the behavior happened and whether such behavior was too extreme for an ordinary person to tolerate. The courts will review each case using the ordinary person’s standard because there are those people who are hypersensitive and those people who are not sensitive at all. As a result, the question the court will ask is whether the ordinary person would think the behavior is severe and pervasive? In this situation, employees do not necessarily demand anything from the employee but are merely harassing you in a severe and pervasive way.
Generally, most behavior has to be repetitive. However, in the State of New Jersey, the courts have recognized that there is intolerable language and behavior that is so severe that one event could be enough.
Is sexual harassment sexually touching or can it be just verbal?
Touching would probably be an assault, which is a separate cause of action. Unwanted touching would be an assault and battery—perhaps even sexual assault and battery. You may be able to make a case that would not only be a form of sexual battery, but also a form of sexual harassment, even if it were just a one-time event.
If these events occur in the context of employment, agency principles will also be applicable in this circumstance. As such, even if the employer did not know that the employee was sexually harassing someone, the employer may still be liable for the misconduct. Ordinarily, we bring the action against the company.
Damages in New Jersey Sexual Harassment Cases
Liability and damages are determined by how the incident affected you and to what degree. It can affect people in a variety of ways. Some individuals may need psychological treatments and some individuals may need medical treatment because they are so sick from the conduct. Others who were harassed for longer periods of time will quit because they cannot handle the work environment and continue to be subjected to that kind of behavior. Lost wages both past and present are also always part of the analysis.
There is an exception to the rule of abandoning your job when severe and pervasive behavior in the context of sexual harassment is present.
The courts permit people to quit because they cannot handle the harassment anymore in what is called a constructive discharge. The courts treat this circumstance as if you were terminated to calculate lost wages and damages. In theory, you could have severe pervasive behavior in any context, forcing you to quit. The courts do not look very positively on people who voluntarily terminate except for the most severe types of circumstances, like sexual harassment.
Q: As a victim of sexual harassment, what are my obligations to report it?
There is no technical requirement within the statute that you have to report it to anyone before you have a recognized cause of action. The fact that it happens is enough. However, documenting and reporting sexual harassment to management and/or human resources is always helpful should a claim ever arise.