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Sexual Harassment - Silence isn't Golden

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The New Jersey Supreme Court has just made life somewhat more difficult for victims of workplace sexual harassment. It decided that in a sexual discrimination lawsuit, an employer can defend itself by claiming that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and that the employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

In this case, a corrections officer claimed that she was subjected to physical and verbal sexual harassment by her supervisors. She verbally complained to a higher ranking officer, but would not give a written complaint, fearing retaliation.

The ruling is important for several reasons: (1) the reporting requirement is necessary for an employer to be held liable for the conduct - or misconduct - of its supervisors; (2) it confirms that a victim of sexual harassment must report it according to the policies in place; (3) it also places a responsibility on employers to have effective anti-harassment policies and to enforce them.

Defending itself from attacks that the Court majority's decision had "turned back the clock for employees victimized by sexual harassment in the workplace and gives greater protection to supervisors who abuse their authority to create a hostile work environment," it wrote that "an employer that implements an ineffectual anti-harassment policy or fails to enforce its policy'" cannot claim that it "exercised reasonable care."

The most serious consequence for (mostly) women and even LGBT employees in the workplace is that the choice of reporting harassment and facing retaliation, or suffering in silence, is now harder.

For employers, though, it mandates that a sexual harassment policy should be in place - and seriously followed - to help protect them from successful employee lawsuits. An employer that operates in good faith in investigating complaints indeed benefits from this decision. But poorly implemented policies and "sham" investigations will not be looked upon kindly by the courts.

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