Employment Law It’s What We Do
By Chakeema Cruickshank, Staff Writer
Sexual harassment in the workplace is common and it is unfortunately a very real problem that impacts many workers. More often than not, these issues go unreported, because of fear of retaliation and job loss. For example, one recent survey shows that 75% of sexual harassment cases in the workplace go unreported. Furthermore, a 2020 report released by the U.S. Equal Employment Opportunity Commission (EEOC) showed that 55.8% of the complaints received during 2020 are related to retaliation after reporting a sexual harassment incident. Retaliation discourages victims from reporting and perpetuates a negative and toxic work environment. While employee fear is significant, New Jersey businesses have the real opportunity to reduce the risk of getting sued.
What is sexual harassment?
Sexual harassment can take many forms. It includes any unwelcome contact or conduct whether it is physical or verbal. This conduct could include actions of sexual nature or inappropriate conduct based on the person’s sexual orientation.
There are two forms of sexual harassment, either quid pro quo or hostile work environment. Quid pro quo (“this for that” in Latin) is a type of harassment that occurs when an employer or supervisor tries to make sexual demands in exchange for advances in their employment or to avoid negative employment consequences. The other type of harassment is a hostile work environment. A hostile work environment is created when the harassment and conditions are so severe and pervasive that it interferes with an employee’s work performance. There can be sexual predators and harassers in any workplace.
Laws on Sexual Harassment.
Every person should feel safe and comfortable at work. Under the New Jersey Law Against Discrimination (NJ LAD), employers have the responsibility to both prevent and properly address sexual harassment complaints. New Jersey courts will consider the following four prong test to determine whether an employee has been subjected to a hostile work environment based upon sexual harassment:
- the offensive and/or harassing conduct would not have occurred but for the employee’s gender;
- the offensive and/or harassing conduct was severe or pervasive enough;
- such that a reasonable man or woman believe that; and
- the conditions of employment are altered and the working environment has become hostile or abusive.
Moreover, the Supreme Court of New Jersey examined the importance of sexual harassment training in the 2002 case of Gaines v. Bellino. There the court ruled that an employer’s sexual harassment policy “must be more than the mere words encapsulated in the policy” instead, the New Jersey Law Against Discrimination (NJ LAD) requires an unequivocal commitment from the employer opposing sexual harassment, not just with words, but backed up by consistent practice. This case established factors to determine if an employer has an effective anti-harassment policy. This includes whether the employers has formal polices prohibiting harassment in the workplace, a formal or informal complaint process, mandates sexual harassment training, and effective monitoring of their policy.
Knowing about that case should be a wake-up call. To help combat the problem, some states have mandated sexual harassment training. Anti-harassment training is a keyway to help prevent and limit sexual harassment lawsuits. In New Jersey, no sexual harassment training is required for private-sector employees, but state government employees and supervisors are required to be trained.
For state government employees, sexual harassment training is fairly extensive. New Jersey state government employees and supervisors are required to take a course called “New Jersey Policy Prohibiting Discrimination in the Workplace Training”. This training advises employees on what discrimination and sexual harassment is and what to do if it occurs in the workplace. Under New Jersey law, all state employees must take a certified class on sexual harassment within six months of their employment and take a refresher course every two years thereafter.
All employers should do the same. While training is not required for private sector employees, as the Gaines v. Bellino case warns, state courts should consider whether or not an employer made training available to supervisors and employees when deciding whether or not an employer was negligent in preventing sexual harassment.
The “best practice” for private sector employers is to require sexual harassment training for all employees. Everyone deserves to feel safe and comfortable at work. By employers, whether public or private, implementing a sexual harassment training and policy against harassment, it will help create a more inclusive and safe work environment for everyone. Equally important, businesses can reduce the risk of a sexual harassment lawsuit if their employees know the rules of the workplace.
What to do if you experience workplace sexual harassment.
If you or a loved one is ever a victim of sexual harassment in the workplace, you are not alone. Check out our previous blog on how to report sexual harassment for information on next steps and what to do.
If you are a federal employee, you can contact an Equal Employment Opportunity Commission (EEOC) counselor within 45 days to report and begin informal counseling. After that is complete, you can choose to file a formal complaint.
If you work in the private sector, you should consult with a knowledgeable attorney. Employees in either case should always document incidents of harassment and at least inform coworkers or family members when something happens. They should also look at any employee handbook or policies that are issued. For employers, you should have employee policies in place and take them seriously.
The same goes for the public-sector. State and local governments are more likely to have specific procedures on reporting harassment – whether they are taken seriously is another question. The first step, in either case, is for a victim of sexual harassment to check the policies – if there is a union, contact its representative.
Sexual harassment in the workplace is a unfortunately common issue. Employers have a commonsense, if not a strict legal, obligation to implement anti-harassment training and mandating it for all employees and management.
Staff Writer Chakeema Cruickshank is currently a second year at Rutgers Law School Camden. Prior to Rutgers Law, she worked for United States Senator Robert Menendez doing constituent relations and outreach for education, environment, and technology.