New Jersey Sexual Harassment Lawyers
“Gee, you sure look good in that dress today.”
Is it sexual harassment for a man to say to a woman with whom he works, “gee, you sure look good in that dress today?” While many people might think it’s ridiculous to even ask that question (“Well, there’s something wrong with this country if a man can’t pay a woman a simple compliment”), it is not a foolish question, and the answer to the question is, “it depends.”
It is really the context that matters most. Is the comment between two co-workers who are friends, or, on the other hand, made by a man to a woman he barely knows, or doesn’t know at all? Is the comment part of a larger pattern of regular comments about the woman’s appearance, and are any of the comments sexual in nature? Is the man making the comment the woman’s boss and in a position of power to exert influence over her or attempt to extract favors from her in return for good performance reviews or raises?
Determining What Creates a Hostile Work Environment
Over 20 years ago, in the case of Lehmann v. Toys ‘R Us, the New Jersey Supreme Court set down the guidelines for determining under what circumstances workplace conduct can create a hostile work environment for employees in the State of New Jersey: It wrote as follows:
To state a claim for hostile work environment sexual harassment, a female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. For the purposes of establishing and examining a cause of action, the test can be broken down into four prongs: the complained-of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.
While the New Jersey Supreme Court in the Lehmann case was dealing with a case brought by a female plaintiff, it went on to explain that the standard it was setting out would apply to all forms of sexual harassment:
In this case, we discuss the standard assuming a female plaintiff, because in both the present case and the majority of cases, the plaintiff is a woman. However, the standard we announce today applies to sexual harassment of women by men, men by women, men by men, and women by women. The [New Jersey Law Against Discrimination] protects both men and women and bars both heterosexual and homosexual harassment. The only difference in the standard would be that a male plaintiff would have to allege conduct that a reasonable man would believe altered the conditions of his employment and created a working environment that was hostile to men.
“Although estimates of the incidence of sexual harassment in the workplace vary, all estimates indicate that the problem is widespread. Estimates include: 53% of women having experienced sexual harassment at some point.” (quoted from the New Jersey Supreme Court opinion in Lehmann v. Toys R Us).
Understanding the Different Forms of Sexual Harassment
Sexual harassment typically takes one of two forms, both of which can create an unlawful hostile work environment. The first, known by the Latin name of quid pro quo harassment (meaning “this for that”), comes down to something very basic –a supervisor seeks sexual favors in return for his protection or assistance on the job. The second, and more common one, is where male co-workers or supervisors engage in conduct that attempts to demean, embarrass, or undermine a female employee.
Regardless of the form the harassment takes, an employer can be held legally responsible for the hostile work environment that results. This is so because it is the employer who controls the work environment and who has the ability to put an end to the harassment or to prevent it in the first place.
Representing Individuals in Sexual Harassment Cases
Winning a case involving sexual harassment and a hostile work environment is no easy matter. Experienced attorneys know that employers will come up with a host of defenses, often going so far as to try to blame the victim herself for the harassment she endured.
Hostile work environments can also arise because of harassment based on an employee’s race, disability, or even religion. While the basis of the hostile work environment is different in each case, the legal approach to taking on these cases is essentially the same.
Lawyers Richard Schall and Patricia Barasch have more than 45 years combined experience representing employees in complex employment discrimination cases, including many cases involving sexual or other forms of harassment.
If you believe you have been subjected to a hostile work environment, please contact our firm by completing the on-line Questionnaire.
* In every year since 2014, the law firm of Schall & Barasch has been included in the Tier 1 list of best law firms in New Jersey practicing in the field of employment law on behalf of individuals. This list is compiled by U.S. News & World Report. A description of the selection methodology can be found at www.bestlawfirms.usnews.com/methodology.aspx.
** The methodology for the Avvo ratings of Richard Schall and Patricia Barasch can be found at www.avvo.com/support/avvo_rating.
*** In every year since 2009, Richard Schall has been chosen to be included on the list of Best Lawyers in New Jersey practicing in the field of labor and employment law. The Best Lawyers list is issued by Best Lawyers International. A description of the selection methodology can be found at www.bestlawyers.com/about/MethodologyBasic.aspx.
**** In every year since 2005, both Patricia Barasch and Richard Schall have been chosen to be included on the list of Super Lawyers in New Jersey practicing in the field of employment law on behalf of plaintiffs. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process.html.
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