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SEXUAL HARASSMENT – STILL IN THE NEWS

Added on 07/26/2016 by kalsonlaw

Sexual Harassment prohibited at work includes practices ranging from direct request for sexual favors to workplace conditions that create a hostile work environment for persons of either gender, including same sex harassment. The New Jersey Law Against Discrimination specifically prohibits discrimination on the basis of sex which includes sexual harassment. In Lehmann, the New Jersey Supreme Court explained actionable sexual harassment. “Quid pro quo” sexual harassment occurs when an employer attempts to make an employee submit to sexual demands as a condition of his or her employment. “Hostile work environment” sexual harassment occurs when an employer or fellow employee harasses an employee because of his or her sex to the point at which the working environment becomes hostile. With respect to both forms of sexual harassment, the target or victim of harassment must demonstrate that the behavior is unwelcome and not consensual.

Sexual harassment can have a long lasting impact on the victim. Sexual harassment or abuse in the workplace can cause emotional strife and financial difficulties to workers. That is why the law recognizes the rights of employees to recover compensation for the distress caused by sexual harassment. Sexual harassment must be severe and/or pervasive. Even one instance of sexual harassment may meet the severe standard. Sexual harassment includes unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature. The conduct interferes with a person’s work performance and creates an intimidating, hostile or offensive working environment.

An employer has an obligation to adopt an anti-harassment policy with a complaint procedure and distribute it to all employees. However, that may not be enough to protect an employer from liability for harassment by one of its supervisors. Although the policy and complaint procedures are a good start, the employer should also provide harassment training to all employees, supervisors and managers. The employer needs to demonstrate that it takes the policy seriously and that harassment will not be tolerated in the workplace. Failure to provide training may be evidence of negligence.

Unfortunately discrimination and harassment claims are on the rise. Under the Cerdeira case, constructive knowledge of a co-worker’s sexual harassment can be imputed to an employer where the employer failed to have in place effective and well-publicized sexual harassment policies that would give employees reasonable avenues for voicing sexual harassment complaints. An employer has an obligation to provide a workplace free from sexual harassment. This includes not just employees of the business but customers of the business and delivery personnel. The Law Against Discrimination also prohibits refusal to do business with any contractors based upon sex.

You may have heard about the recent sexual harassment lawsuit filed by Fox News Host, Gretchen Carlson, charging CEO Roger Ailes with sexual harassment. This complaint was filed in Bergen County, New Jersey on July 6, 2016. In her complaint, Ms. Carlson alleged that she was the victim of sexual advances from the Fox News Executive about a decade ago. It further alleges that Ailes unlawfully retaliated against Carlson and sabotaged her career because she refused sexual advances and complained about severe and pervasive harassment. The retaliation against Carlson included assigning her fewer, hard hitting, political interviews, reducing her appearances, reassigning her time slots and other actions. Her contract was not renewed on June 23rd, 2016. Predictably, Ailes denied the allegations and contended that Carlson’s contract was not renewed due to performance reasons.

Fox News hired the New York law firm Paul, Weiss to conduct an investigation of the sexual harassment complaint. During the investigation, at least two other women went on the record discussing similar allegations of harassment by Ailes. Fox News’ Megyn Kelly confirmed that she was sexually harassed by CEO Roger Ailes less than two weeks after the Carlson complaint was filed. Kelly told the team handling the outside investigation that she too was the victim of sexual advances from the Fox News Executive about a decade ago. According to news sources, after investigation, News Corp. determined that Roger Ailes must be removed from his position. Other sources said Ailes was negotiating his exit via “resignation and a package”.

The Fox News sexual harassment cases continue to expand and include other individuals. This may show a pattern at the network of conduct and atmosphere tolerated. The fact that there was corroboration of the inappropriate behavior and sexual harassment was extremely important in determining credibility of the allegations. Unfortunately, many times, sexual harassment is a he said/she said proposition. Without corroboration it may be difficult for an employer to make credibility decisions and determine who to believe.

In my experience, an individual who commits sexual harassment is likely to do so again. In other words, it is conduct that is usually repeated and not an isolated incident. Sometimes that case, the first victim may not have the best case in that he or she must prove that the employer knew or should have known about the sexual harassment. Further that it failed to take appropriate, remedial action including a prompt investigation and appropriate discipline. The second and third victims of the harassment have it easier in that they do not have to prove that the employer knew of the sexual harassment.

In the Aguas, case the Court emphasized the importance of an employee who was a victim of sexual harassment or discrimination to utilize the employer’s internal complaint procedure. An employee should bring the sexual harassment and/or discrimination to the employer’s attention. Failure to utilize the internal complaint procedure, may be a defense to an employer that has a detailed, serious, anti-harassment policy and complaint procedure.

I am often asked what is prompt, remedial action. First of all, it should be sooner rather than later. An employer must act with a sense of urgency. What is sufficient remedial action depends on whether it works or not. For example, if the individual harassing stops his/her inappropriate behavior after an oral warning or small suspension, that may be sufficient if the individual who is harassing ceases their objectionable conduct. As a victim of sexual harassment, you do not have the right to demand that the person harassing be terminated. I’ve been involved in cases where the employee was insistent that they be removed from the work area and not have to work in the same office as the perpetrator That request may not be granted. In a case I was involved in a few years ago, the employee resigned when the employer failed to relocate a supervisor. She did not want to work in the same area as the individual who harassed her. A jury did not find in her favor. In my opinion that employee would have had a difficult time collecting unemployment since no further incidents of harassment occurred.

If you are the victim or recipient of unwanted sexual advances or sexual harassment, you should immediately advise the person harassing you that the conduct is unwelcome and request that they stop. You should also utilize the company’s harassment policy and complaint procedure and file an internal complaint with the company prior to resigning from the job. Sometimes it is difficult if the harassment is from higher up management within the company such as the President of the company. In that case, the complaint procedure may be ineffective.

In New Jersey, you can receive damages for emotional distress resulting from sexual harassment without the necessity of treating with a medical professional. You can also seek other remedial relief. Attorney’s fees are awarded if you go to trial and prevail on the claim of sexual harassment. If you, a friend, family member or acquaintance feel that you have been subject to unwelcome sexual advances or sexual harassment at work, you should consult with an employment attorney to ensure that your interests are protected.