Mark Law Firm Blog

The Law Against Discrimination protects both men and women from homosexual or heterosexual harassment

Posted by Jamison Mark on May 8, 2014 1:08:00 PM
New Jersey Attorneys

It is becoming more and more prevalent and the cases are becoming more and more publicized. The law, however, rarely differentiates between sexual harassment and homosexual harassment. Many times one is subjected to unwanted sexual advances in the work place, much like we saw in the Movie "Disclosure" when Demi Moore stalked and harassed Michael Douglas. While the movie sensationalized the harassment, it too often is not far off from what can really happen. The movie Disclosure demonstrated an "not-so-typical" form of sexual harassment because it was a woman harassing a man.

Furthermore, the work place can experience homosexual sexual harassment. In this case, a homosexual person can harass another homosexual person, which is illegal. But also, when an employee is harassed because he or she is perceived to be gay, and is treated unlawfully, such conduct is also illegal if that employee is treated differently, singled out, harassed, or retaliated against due to the "perception" of him/her being a homosexual (even if the employee really is not a homosexual).

Under the below examples, can you guess which relates to homosexual harassment and which applies to heterosexual harassment?

  • Quid Pro Quo Sexual Harassment. Quid Pro Quo Sexual Harassment places a subordinate at the mercy of a supervisor to engage in unwelcome sexual conduct and that the victim's response adversary affects your compensation, terms and conditions, promotion or demotion, lack of opportunity or continued employment.

Unlike most other forms of harassment, quid pro quo sexual harassment does not necessarily require evidence of an actual economic loss or psychological harm. The fact that you had to submit to sexual demands to continue any benefit of employment (or threat of loss of an employment benefit) may be sufficient. If, however, a threat by the supervisor is not carried out but results in repeated harassment, you may have a claim of "hostile work environment," under the Law Against Discrimination (see below).

  • Hostile Work Environment Sexual Harassment. A hostile work environment sexual harassment claim may be made if it is proven that:
  • the harassing conduct would not have occurred but for the employee's gender;
  • the harassing conduct was severe or pervasive;
  • that a person of similar gender would believe;
  • the conditions of employment have been altered and the working environment is hostile or abusive.

A general misconception of "harassment" is acts such as bantering, teasing, offhand comments, crudeness, rudeness in which you do not agree with or have conflicting issues with a supervisor. To be actionable under the Law Against Discrimination, the conduct must be related to one's gender, it must be sexual or sexist, and it must truly offend (i.e., severe or pervasive) a person of similar gender to the victim. The compelling factor to address in evaluating any Hostile Work Environment Claim is how "severe" or how "pervasive" the actions or comments were. Also, the standard to be applied by a victim is a "reasonable man/woman" to determine if the conduct should be viewed as "severe" or "pervasive," it eliminates the hypersensitive or eggshell plaintiff, but adequately protects a strong willed or thick skinned victim.

If you are unable to differentiate between the above information, but feel that these definitions fit you, contact Mark Law Firm, LLC at 908-626-1001, 973-440-2311 or by sending us an email at the "contact us" page. Mark Law Firm representing employees throughout Scotch Plains, Watchung, and Westfield, New Jersey.

Topics: Sexual Harassment