- 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. The Princeton, New Jersey harassment lawyers at Mason, Griffin & Pierson, P.C. can help you establish your claim. The attorneys must prove that the complained-of conduct actually occurred. 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. 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 protected status. would find the working environment hostile.
In this day and age, it is hard to imagine that sexual harassment still occurs in the workplace, but it does. Whether you are employed in a Fortune 500 company, or a small “mom and pop” business, sexual comments, innuendos, emails, photos and even unwanted touching and propositioning, take place with disturbing frequency. There are two forms of sexual harassment: hostile work environment sexual harassment, and quid pro quo sexual harassment. Quid pro quo sexual harassment involves a threat, whether actual or implied, that if you do not submit to your employer’s sexual demands, you will be fired or suffer some other adverse employment action (such as suspension or demotion). The more common type of sexual harassment is hostile work environment sexual harassment. Both are wrong, but sexual harassment is not as obvious and may be harder to prove.
Filing a Mercer County, New Jersey Sexual Harassment lawsuit
If you believe you have been subjected to a hostile work environment in New Jersey, you may want to file a Mercer County sexual harassment lawsuit. First you must prove that offensive conduct actually occurred, and then you must prove that the conduct constitutes sexual harassment. The skilled Princeton sexual harassment attorneys at have the knowledge and experience necessary to help you prove your claim. When we discuss your sexual harassment case, we focus on the following issues which must be demonstrated:
1. Did the Conduct Occur?
Often, sexual harassment has no witnesses. It is a classic “he said, she said” situation. Do you have any documents to help prove the conduct occurred, such as an emails, photos, cards, even a text message? If not, don’t give up. Your good credibility is enough to prove the offensive conduct occurred. But one important thing you can do, particularly if you are still working in a sexually offensive environment, is to keep a journal of the comments and conduct you are subjected to. It is important to keep this record contemporaneously, as the incidents occur. In other words, as soon as possible after the comment or conduct occurs, write it down!
2. Does the Conduct Constitute Sexual Harassment?
To prove that the conduct constitutes sexual harassment, you must be able to prove two elements by a preponderance of the evidence. First, you must prove that the conduct would not have occurred “but for” your sex. Second, you must prove that the conduct was severe or pervasive enough to make a reasonable woman believe that the conditions of employment and the working environment were altered and that the working environment had become intimidating, hostile or abusive.
You must prove that the conduct occurred because of your sex. Stated differently, you must prove that the conduct would not have occurred if you had been a man. If you have been subjected to a sexual touching and comment, it is easy to establish that the harassment occurred “because of” your sex. But, a claim for sexual harassment does not require that the defendant be motivated by the desire for sexual gratification. Also, 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 sex.
You must also prove that the conduct constituting sexual harassment was severe or pervasive enough to make a reasonable woman believe that the working conditions were altered and that the working environment had become intimidating, hostile or abusive. At trial, a jury will be instructed that, when deciding whether plaintiff has proved this element, they should consider the following:
(1) The law does not require that the workplace be free of all vulgarity or sexually-laced speech or conduct. Offensive, crude or inappropriate comments are not automatically discriminatory because the words used are tinged with sexual connotations. Occasional, isolated and/or trivial remarks or conduct of a sexual nature are generally insufficient to constitute sexual harassment. Rather, only speech or conduct that is sufficiently severe or pervasive to create a hostile or intimidating working environment can constitute sexual harassment.
(2) In determining whether the conduct is severe or pervasive, 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 severe incident or an accumulation of incidents. To evaluate the severity of the conduct the jury should consider several factors including whether: (a) the conduct was perpetrated by a high ranking employee of the defendant; (b) the conduct occurred at a place of employment that, by its nature, would not normally include offensive or crude language or conduct; (c) the employer had knowledge of plaintiff’s particular sensitivity to offensive/aggressive behavior of a sexual nature.
(3) In deciding whether the conduct is sufficiently severe enough to create a hostile working environment, the jury must view the conduct from the perspective of a “reasonable woman,” not from the plaintiff’s own subjective perspective. In other words, the issue it must decide is not whether the plaintiff personally believed that her working environment was hostile. The issue it must decide is whether a reasonable woman would find the working environment hostile. Thus, if only an overly-sensitive woman would view the conduct as sufficiently severe to create a hostile working environment, but a reasonable woman would not, it is not harassing conduct for which the plaintiff can recover. However, just because the plaintiff’s reaction to the conduct was particularly severe, the conduct may still be sufficiently severe to cause a reasonable woman to feel that her working condition were altered and her working environment had become intimidating, hostile or abusive. A jury will use its own judgment in deciding whether a reasonable woman would consider 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.
Edwin W. Schmierer, Esq., a firm Director, will be an instructor for the New Jersey Planning Official’s Planning and Zoning Board members training session in Somerset County on October 3, 2020. Mr. Schmierer chairs the firm’s Government Practice Group and represents a number of land use boards including the Lawrence Township Planning Board and the Zoning Board of Adjustment, Borough of Pennington Joint Planning and Zoning Board of Adjustment and the West Windsor Zoning Board of Adjustment. The New Jersey Planning Officials can be reached at [email protected] for any land use board member interested in attending the training session.
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In a recent decision (Justin Wild v. Carriage Funeral Holdings, Inc.), the New Jersey Supreme Court determined that an employee who is fired for using medical marijuana outside the workplace may bring a claim for disability discrimination under the New Jersey Law Against Discrimination. Mason, Griffin & Pierson Attorney, Elizabeth Zuckerman, who argued the cause for Amicus Curiae National Employment Lawyers Association of New Jersey, stated the "decision is a win for employees who test positive for marijuana due to their lawful use of medical marijuana outside the workplace."
Jeanne-Marie Scollo has become an Associate with Mason, Griffin & Pierson, P.C. She earned her J.D from Touro College Jacob D. Fuchsberg Law Center. She is a member of the firm's Local Government Law and Litigation Practice Groups. Ms. Scollo brings over nine years of previous legal experience to the firm. She served as Deputy County Counsel for Middlesex County from 2014 to 2019 and was previously a solo practitioner in New Brunswick. Ms. Scollo is admitted in New Jersey and New York and is a member of the New Jersey Institute of Local Government Attorneys, Mercer County, Middlesex County, and New Jersey State Bar Associations.