What actually counts as workplace sexual harassment in New Jersey?

Sexual harassment at work is illegal under both the New Jersey Law Against Discrimination and Title VII of the federal Civil Rights Act of 1964. This is a pernicious form of gender discrimination, but we often hear bitter comments on how we have now outlawed every-day friendliness and flirting.

Does telling a coworker she’s attractive count as sexual harassment? Could you be breaking the law simply by asking a coworker out?

No. Sexual harassment law only prohibits behavior serious enough to create a hostile work environment -- one so severely or pervasively sexualized that a reasonable person would find it intimidating or abusive. It’s not ordinary behavior but sexual bullying, and it violates every employee’s right to a reasonably safe workplace.

To prove sexual harassment, the plaintiff has to bring sufficient evidence for a reasonable jury to conclude:

• The events described by the plaintiff actually occurred;
• Those events constituted sexual harassment;
• The employer should be held responsible, because a supervisor performed the harassment, because management knew or should have known about the problem but didn’t intervene, or because the company failed to take reasonable steps to prevent sexual harassment.

Since we’re discussing what sexual harassment is, we’ll focus on the second requirement. Workplace behavior or corporate culture is only considered sexual harassment if it is severe or pervasive and it targets an employee’s gender. It need only be severe OR pervasive, so a single instance of outrageous conduct could be enough.

The courts evaluate sexual harassment claims by looking at the specific circumstances and the overall context. For example, lewd or vulgar speech might be ubiquitous in a certain workplace but not count as sexual harassment because it wasn’t directed at a particular gender or because it didn’t create an intimidating workplace. To be illegal, the behavior has to be considered objectionable by a reasonable person, not someone who is overly sensitive.

If sufficiently severe or pervasive, some examples of sexual harassment include:

• Frequent sexist comments
• Outrageous or persistent displays of pornography
• Relentless, unwanted sexual advances
• Unwanted touching or kissing
• Implying that success or advancement can be traded for sex
• Sexual assault

If you think you’re being sexually harassed at work, you don’t have to take it -- and you don’t have to quit. Understand your legal options by discussing your situation with an employment law attorney right away.