- Of Counsel
The most common form of hostile work environment harassment is sexual harassment. But harassment on the basis of any protected status, such as age, race, national origin or sexual orientation is a form of discrimination and is prohibited by the New Jersey Law Against Discrimination (NJLAD). If you have been harassed because of some protected status, and that harassment has created a hostile work environment, then you may have a claim under the NJLAD if you can prove that the complained-of conduct actually occurred and that the conduct constitutes discriminatory harassment. Not all harassment is against the law. Only harassment because of your protected status (such as age, race or gender) is a violation of the NJLAD. To prove that the conduct constitutes discriminatory harassment, you must be able to prove two elements by a preponderance of the evidence. First, you must prove that the conduct occurred because of some protected status, such as your age, race, gender, disability, national origin or sexual orientation. Second, you must prove that the conduct was severe or pervasive enough to make a reasonable person believe that the conditions of employment were altered and that the working environment was intimidating, hostile or abusive.
Protected Status – For example, if you are claiming that you are being harassed because you are gay, you must prove that the conduct would not have occurred if you were heterosexual. To prove that the conduct occurred because of your protected status, you do not have to prove that your employer or supervisor intended to harass you or intended to create a hostile working environment. The employee’s or supervisor’s intent is not at issue. The issue is simply whether the conduct occurred because of your protected status.
Sufficiently Severe or Pervasive – To establish this element, keep in mind that the conduct does not have to be both severe and pervasive; the conduct need only be severe or pervasive. The conduct can consist of a single very severe incident or an accumulation of incidents. When the conduct consists of multiple incidents, you should not consider each incident individually, but should consider the totality of the incidents. Numerous incidents that would not be sufficient if considered individually or separately may be sufficient when considered together. You need not personally have been the target of each or any instance of offensive or harassing conduct for a court to find that the working environment was hostile. Evidence of offensive or harassing conduct directed toward other workers, if you personally witnessed that conduct, is also relevant. In deciding whether the conduct in your case is sufficiently severe or pervasive to create a hostile working environment, a court will view the conduct from the perspective of a reasonable person who is also a member of your protected status, not from your own subjective perspective. In other words, the issue that must be decided is not whether you personally believed your working environment was hostile. The issue is whether a reasonable person of your age or with your disability (or whatever protected status is at issue) would find the working environment hostile.
Finally, it is not necessary to show that you have actually been psychologically harmed by the conduct, or that you suffered any economic loss as a consequence of the conduct. Those issues may be relevant to the amount of damages you can recover, but they are not relevant to the issue of whether the conduct constitutes unlawful harassment.
Sometimes, conduct in the workplace is not necessarily discriminatory, but it is so outrageous that it may be actionable in its own right. In those situations, you may have a claim for intentional infliction of emotional distress. To maintain an action for intentional infliction of emotional distress, you must prove that the defendant acted intentionally or recklessly. More specifically, it must be shown that either: (1) the defendant intended both to do the act and to produce the emotional distress; or (2) that the defendant acted recklessly in deliberate disregard of a high probability that emotional distress would follow. The touchstone of this tort is the extreme and uncommon nature of the actor’s conduct. To form the basis of an independent claim for intentional infliction of emotional distress, the conduct involved must be “extraordinarily despicable” to the average member of the community. Where individual acts fail to rise to the necessary level of outrageousness to support an emotional distress claim, some Courts have held that a pattern of indignities may be sufficient. For example, in one case, the plaintiff accused her employer of discrimination on the basis of her disability and intentional infliction of emotional distress. Although the Bishop court was “skeptical” of plaintiff’s ability to meet the high standard for an intentional infliction of emotional distress claim, given the litany of alleged incidents and the asserted “continuing pattern of harassment”, the Court allowed the claim to proceed. 864 F. Supp. at 428.
Severe distress must be proved, but in many cases the extreme and outrageous character of the defendant’s conduct is, by itself, important evidence that the distress. As such, it is for a court to determine whether on the evidence presented severe emotional distress can be found; it is for the jury to determine whether, on the evidence, severe emotional distress in fact exists.
Elizabeth Zuckerman has been named Of Counsel to the Princeton law firm, Mason, Griffin & Pierson, P.C, and will lead its Employment Law section. Ms. Zuckerman received a J.D. from the University of California at Davis School of Law where she served as Executive Editor for the Law Review. In 1997, Ms. Zuckerman co-founded the employment law firm of Zuckerman & Fisher, LLC, focusing her practice on employee rights. Ms. Zuckerman is admitted to practice law in New Jersey, the Third Circuit, and the U.S. Supreme Court. She will continue to practice in the areas of employment law, employee rights and appellate practice. Ms. Zuckerman serves on the Executive Committee of the New Jersey chapter of the National Employment Lawyers Association and is a member of the New Jersey State and American Bar Associations.
Mason, Griffin & Pierson is celebrating its sixty-fifth anniversary. Since its founding in 1955, the firm has evolved from a two-man general practice partnership to a mid-size professional corporation which continues a general practice but has developed specific areas of concentration. The firm has been an integral part of central New Jersey over the past sixty-five years. The firm's first municipal client, Princeton, remains a client today, along with other municipalities and governing bodies in Mercer, Somerset, Middlesex, Hunterdon, Camden and Gloucester counties. Two of the firm's attorneys have served as President of the Mercer County Bar Association and, in 2001, the firm received the Community Partner Award from Mercer County Bar Foundation. Four of the firm's attorneys have been honored with the Fred G. Stickel Award for Excellence in Municipal Law and Service to the Legal Profession.
Elizabeth Zuckerman will be an instructor for the Princeton Adult Education course, Know Your Rights as an Employee. The 3-session course starts on February 11 and will explore topics including sexual harassment, discrimination, medical marijuana in the workplace, whistle-blower claims, NJ’s newly enacted Wage Theft Act, Federal and State family leave acts, and other laws that protect employees. Ms. Zuckerman has been practicing employment law for thirty years in Princeton and serves on the Executive Committee of the New Jersey chapter of the National Employment Lawyers Association. For more information visit .princetonadultschool.org.
MG&P starts the new year with new municipal clients. Kevin Van Hise has been appointed as the attorney for the West Amwell Township Zoning Board of Adjustment and Edwin Schmierer was recently retained by the Borough of Elmwood to serve as Special Counsel.
Elizabeth Zuckerman will be arguing in the NJ Supreme Court on February 3rd, in the case of Wild v. Carriage Funeral Holdings, Inc. The case involves the issue of whether an employee who uses medical marijuana can be terminated for failing a drug test. Ms. Zuckerman will be arguing on behalf of Amicus NELA-NJ.
Mason, Griffin & Pierson is pleased to sponsor Montgomery Township Education Foundation. The Foundation's fundraiser takes place on the evening of March 14 at Cherry Valley Country Club in Skillman, New Jersey. The Foundation is an independent, non-profit organization set up to support strategic programs for the benefit of the Montgomery Township public school children. For more information go to mtefnj.com
The SECURE ACT changes the age for required minimum distributions (RMDs) for traditional IRAs from 70 ½ to 72. The new rules allow an individual of any age to make contributions to a traditional IRA, as long as the individual has earned income from wages or self-employment. The Act also affects beneficiaries of inherited IRAs. Other than a few exceptions, inherited IRAs (for deaths of IRA owners on or after 1/1/2020) are now required to be completely distributed within ten years following the death of the original account owner. In view of this significant change for inherited IRAs, estate plans put in place prior to the SECURE ACT may need to be revisited. Read more here.