For most of us, the goal of employment is to do what you like in a place where the environment is friendly, safe and productive. While not everyone is in that exact situation, there’s a right to be safe where you work. New Jersey provides employees protection against a “hostile work environment” through its Law against Discrimination (LAD) and the 1993 case of Lehmann v. Toys R, Inc.
In that case, the New Jersey Supreme Court said that to establish a hostile work environment, the woman who sued and claimed that she suffered sexual harassment from her supervisor must show that the harassment: “(1) would not have occurred but for her gender [or other protected class status]; and it was (2) severe or pervasive enough to make a (3) reasonable woman [the standard used here is a person of the same legally protected class] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.” The Court admitted in that case that supervisor or co-employee misconduct is often hidden behind a corporate veil or lost through an inadequate anti-harassment policies. If an employee is found to have been a victim of a hostile environment, the employer itself is liable for any harassment made by the employee’s supervisor. In another case, Blakey v. Continental Airlines, Inc., the Court in 2000 extended employer liability to misconduct by co-workers when the employer knows or has reason to know that the harassment is taking place.
While the most obvious scenario of a hostile work environment is an employee being subject to continuous lewd sexual or other inappropriate behavior from another member of the staff, or being propositioned for sexual favors in return for better treatment or benefits on the job, harassment on the job doesn’t just apply to the sexual type.
In a 2008 case Cutler v. Dorn, the Court held that Lehmann’s standard of determining a hostile work environment applied to all protected classes. New Jersey’s LAD lists such classes, which includes race, gender, sexual orientation, age, ancestry, service in the armed forces, religion and disability. So – unfortunately – if the harassment isn’t because of the victim being in a protected class – there’s no legal protection. A rare and difficult to prove case can come up if an employee isn’t in a protected class, but can prove that “the employer is the rare one who discriminates against the historically-privileged group.”
It’s also important to know that a hostile work environment can be created either through a single traumatic event or many incidents of misconduct. Work can be difficult enough without any added fear of bodily harm or humiliation.
The most important thing for a victim of gender, race, age or other mistreatment at work at work to do is complain in writing, follow any reporting policies, keep a written record and tell family, friends or co-workers when the bad things happen, not months or years later. Employers who ignore or minimize employee claims, to protect a valued employee, a family member, or because they just can’t be bothered, do so at their peril. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated with me on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.