- 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.
Trishka Waterbury Cecil, Of Counsel with the Firm, has completed her annual Year-End Law Review for 2020 (a/k/a the “Big Book”) which is now available for members on the New Jersey Institute of Local Government Attorneys (NJILGA) website: https://www.njilga.org/. At a webinar presented on November 19, 2020 at the New Jersey State League of Municipalities Virtual Conference, Trishka (NJILGA Past President) and Steve Goodell (Treasurer), highlighted and discussed selected local government cases from the past year and entertained questions and comments from attendees.
Sharon Dragan, a Director with the Firm, has recently been elected to serve as Secretary for the NJ Institute of Local Government Attorneys in 2021. For more information about the NJILGA, see
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