As the #MeToo movement brings workplace sexual harassment into the spotlight, some people are expressing concerns. As some employees speak up about their experiences and complaints, others can feel blamed, attacked, or otherwise uncomfortable. For employers, it’s important to develop protocols for properly handling these kinds of situations and ensuring that all employees have a safe working environment.
Employers have a legal obligation to protect their employees from hazards in the workplace, including all forms of workplace harassment. Sexual harassment law prohibits behavior serious enough that a reasonable person would find it intimidating or abusive because it is a violation of an employee’s right to a safe workplace. The law considers supervisors to be representative agents of their employers, so the company itself is directly liable for improper conduct they exhibit towards the workers they supervise. In addition, in some situations, an employer might also be held liable for harassing conduct between non-supervisory co-workers.
The standard under the New Jersey Law Against Discrimination (NJLAD) is that a plaintiff must allege discriminatory conduct that a
To succeed on a claim for violation of the law, a complainant must meet four components: the complained-of conduct (1) would not have occurred but for the employee's gender, and (2) it was severe or pervasive enough that it (3) would make a reasonable person of the same gender believe that (4) the conditions of their employment have been altered so that the working environment is hostile or abusive.[2]
The NJLAD protects both men and women from conduct that is directed at them by individuals of any gender so long as it meets these four components. The exact nature of what kind of conduct creates an “abusive working environment” is not defined under the law. As societal norms and expectations change, specific behaviors may shift away from being acceptable. New Jersey’s Supreme Court notes that “In fashioning a standard we acknowledge that the hostile work environment claim is still evolving. Conduct considered normal and non-discriminatory twenty years ago may well be considered discriminatory today.”[3] In light of that flexible, always-evolving standard, employees may feel that they are being subjected to gender-based workplace harassment as a result of heightened pressure to report inappropriate conduct, a sense that they must use excessive caution in dealing with people of a different gender, or new restrictions or disciplinary actions that have been triggered by anti-harassment policies.
To maintain a workplace that is safe for all and reduce the risk of misunderstandings, companies should implement comprehensive, effective anti-harassment policies. Such policies should both help prevent harassment and clearly establish an effective system for reporting and responding to harassment. The written policy should include concrete action plans and directives for the employees responsible for its implementation and enforcement.
The U.S. Equal Employment Opportunity Commission (EEOC) publishes and compiles many guidances to help employers develop and implement anti-harassment polcies, including one helpful publication titled “Promising Practices for Preventing Harassment.” This document outlines what the EEOC considers “best practices” and basic principles of a successful, legally-compliant workplace anti-harassment policy. The EEOC has also developed a preventative training program called Respectful Workplaces; since 2016, this program has been used in over 200 training sessions for more than 5,200 employees and supervisors in 18 states.
Whether you are a business owner or manager or an employee concerned about your workplace environment, consulting with an experienced New Jersey employment attorney can help you understand your rights and responsibilities. An employment lawyer can help employers develop and implement a legally-compliant and effective complaint system and anti-harassment policy, from preparing handbooks and policies to organizing training and a complaint response system. An experienced employment attorney can also help employees who believe they are experiencing a hostile work environment evaluate their options under state and federal laws. Contact the lawyers at the Mark Law Firm today to make an appointment at any of our convenient locations.
[1] Lehmann v. Toys R'Us, Inc., 626 A. 2d 445 (NJ 1993).
[2] Id.
[3] Id.