Articles Posted in Harassment

Harassment in the workplace violates federal and New Jersey employment laws in certain circumstances. The harassment must be based on a protected category like race, sex, or religion. It must negatively impact someone’s employment, such as when it creates a hostile work environment. The Equal Employment Opportunity Commission (EEOC) investigates alleged harassment that violates federal employment laws like the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964. In October 2023, the agency issued a new proposed guidance document on unlawful workplace harassment and sought comments from the public. Should the EEOC decide to issue a final guidance document, it would be the first significant update to its guidance in over twenty years.

When Is Harassment Unlawful?

Offensive conduct rises to the level of unlawful harassment in several situations. First, the conduct must be motivated by a protected characteristic like race or sex. Second, one of the following must apply:
– A worker must endure offensive, unwelcome conduct to maintain their employment;
– The conduct is so severe or pervasive that a reasonable person would consider the work environment to be hostile; or
– The conduct is intended to retaliate against a worker for legally protected activities like reporting alleged discrimination.

What Kinds of Conduct Can Constitute Harassment?

A wide range of behaviors can constitute harassment, including offensive jokes or comments, offensive images or gestures, ridicule, intimidation, threats, or physical assault. It can come from managers, supervisors, co-workers, and non-employees like contractors or customers.
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The term “quiet quitting” gained traction on social media in 2022, and debates over whether or not it is a real phenomenon have continued throughout 2023. It generally involves employees who are unwilling to do more than what their job description specifically requires. A related concept, “quiet firing,” has also emerged. It involves an employer that, rather than directly firing an employee, takes adverse actions that drive the employee to the point of resigning. While “quiet firing” might be a new term, it is not a new concept in New Jersey employment law. Constructive discharge, in which an employer makes working conditions so intolerable that an employee feels they have no choice but to quit, may violate laws against wrongful termination, discrimination, harassment, and retaliation.

What Is “Quiet Firing”?

The Harvard Business Review (HBR) defines “quiet firing” as the practice of “intentionally creat[ing] a hostile work environment that encourages people to leave voluntarily.” This arguably saves the employer money on severance and unemployment benefits.

This is hardly new to the workplace. Individual managers and supervisors have long used these kinds of tactics to drive out employees for various reasons. The HBR, however, suggests that some employers are now being more systematic about it. It notes studies from the past few years that show growing numbers of employees who leave their jobs for reasons like “feeling disrespected.”
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Sexual harassment is a form of sex discrimination under New Jersey employment law. It can range from unwelcome workplace behavior, such as sexually-charged jokes or comments, to outright sexual advances or worse. Federal and state laws in New Jersey prohibit this type of conduct, as well as retaliation against workers who report alleged unlawful activity. They also allow employees to recover damages from their employers. In November 2022, a court in Camden County awarded $7 million in damages to a group of plaintiffs who alleged widespread sexual harassment in the dental office where they worked.

Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit employment discrimination on the basis of sex. This includes sexual harassment. Federal and state courts have identified two main types of sexual harassment:
– Quid pro quo sexual harassment occurs when an employee or job applicant must submit to sexual demands in order to obtain an employment-related benefit or avoid a penalty. A hiring manager, for example, might tell a job applicant that the job is theirs, but only if they agree to sexual activity.
– A hostile work environment occurs when a workplace features recurring or severe sexual conduct. The harassment must be serious enough that it interferes with someone’s ability to do their job. It may come from anyone in the workplace, such as a supervisor, coworker, or customer.

Eight women filed suit against their employer, a dental practice with offices in several areas of New Jersey, in 2016. They alleged multiple violations of the NJLAD. The defendants include multiple business entities and individual owners, managers, and supervisors. In an amended complaint filed in 2020, the plaintiffs describe the dental offices as a “sexual harassment playground” for several managers. They allege an ongoing pattern of “unwelcome sexual advances and flirting,” “unwanted touching and groping,” and requirements that “certain female employees…submit to sexual advances and flirting as a condition of employment.”
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The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination in numerous areas of life, including employment and education. Claims involving discrimination in educational environments are often quite similar to New Jersey workplace discrimination claims. While they might involve alleged acts by teachers, professors, coaches, or administrators rather than supervisors or managers, the standards of evidence are the same or very similar. New Jersey courts have recognized claims that allege hostile educational environments using the same test applied to hostile work environment claims. The New Jersey Appellate Division recently affirmed a lower court order denying a university’s motion for summary judgment in a lawsuit by former students alleging a hostile educational environment under the NJLAD. Notably, the claim alleges harassment of a group rather than individuals.

The NJLAD identifies race, sex, and sexual orientation as protected categories in the workplace. Employers may not discriminate on the basis of these and other factors, which may include subjecting one or more employees to harassment or a hostile work environment. The New Jersey Supreme Court described a four-part test for identifying a hostile work environment in a 1993 decision: The alleged conduct (1) only occurred because of the employee’s sex or membership in another protected category, and (2) it was so “severe or pervasive” that (3) a reasonable person belonging to the same protected category would conclude that (4) the conduct has changed the “conditions of employment” and rendered the “working environment…hostile or abusive.” The decision specifically involved sexual harassment, but New Jersey courts have since applied this test to claims involving alleged hostile work and educational environments based on other factors as well.

When assessing claims alleging hostile work environments or hostile educational environments, courts must consider how multiple acts of harassment or hostility may affect someone over time. In a 2003 decision, the New Jersey Supreme Court addressed the need to look at the “cumulative [e]ffect of individual acts,” rather than each alleged act in isolation.

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The New Jersey Law Against Discrimination (NJLAD) provides a wide range of protections for employees and job seekers. It prohibits employers from discriminating on the basis of factors like race, sex, religion, disability, and more. It also addresses retaliation against employees who report alleged discrimination or harassment, either within the company or to a government agency like the Equal Employment Opportunity Commission (EEOC). A lawsuit filed in a New Jersey court in the fall of 2021 alleges, in part, that the plaintiff’s employer unlawfully retaliated against her because she reported an incident of alleged sexual harassment. If you are facing retaliation for reporting harassment, please reach out to a New Jersey employment lawyer at your earliest convenience.

The NJLAD and other employment laws view sexual harassment as a type of sex discrimination. When one or more people in the workplace engage in harassment based on sex, such as by making bawdy jokes or inappropriate sexual comments, their conduct could violate the law. Harassment creates an unlawful hostile work environment, according to the EEOC, when it is “severe or pervasive enough…that a reasonable person would consider [it] intimidating, hostile, or abusive.” In order for an employer to be liable for sexual harassment, they must have been aware of the problem and failed to address it.

The EEOC notes that “petty slights, annoyances, and isolated incidents” might not “rise to the level of illegality.” A single incident can support a hostile work environment claim, but it must be quite severe. Many small incidents, on the other hand, can create a hostile work environment over time. Reporting concerns about workplace harassment is therefore very important and protected by the NJLAD.
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Unwelcome sexual remarks in the workplace can violate employment statutes in New Jersey that prohibit discrimination on the basis of sex. This kind of conduct becomes unlawful sexual harassment when it is so severe or pervasive that an objective observer would find it to be a hostile work environment. An employer may be liable for damages under laws like the New Jersey Law Against Discrimination (NJLAD) when management is aware of the harassment but does not take reasonable steps to correct the situation. A lawsuit filed in September 2021 in a New Jersey state court alleges sexual harassment by several executives and others at a mortgage lender. If you have been subjected to sexual harassment in the workplace, you would be wise to consult with a New Jersey employment attorney as soon as possible.

The NJLAD prohibits employment discrimination based on sex, gender, and numerous other factors. Harassment on the basis of any protected category could violate the law, such as harassment of an employee because of their religion or religious attire. Sexual harassment is particularly insidious in workplaces around the country. The U.S. Supreme Court first recognized sexual harassment as a form of sex discrimination under federal law in a 1986 decision, Meritor Savings Bank v. Vinson.

The Meritor decision addressed “unwelcome sexual advances that create an offensive or hostile working environment,” and found that a plaintiff does not have to prove direct economic losses, such as a demotion or cut in pay, to establish that discrimination occurred. The impact of enduring a hostile work environment can be enough, the court held. The New Jersey Supreme Court adopted the Meritor ruling in a 1993 decision addressing a hostile work environment claim under the NJLAD.
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Discrimination against Muslims, people with Arab heritage, and people perceived to belong to either or both of those groups has been an ongoing problem in New Jersey and around the country for a long time. This includes workplace discrimination and harassment because of a person’s religious beliefs or practices, or stereotypes about that person’s religion. New Jersey employment discrimination on the basis of religion violates both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD). With regard to Muslim workers, this type of discrimination can, in some cases, overlap with discrimination based on national origin or race. A New Jersey woman brought attention to this issue earlier this year with allegations of discrimination and harassment because of her Muslim faith. This led to a commitment by the employer to change how it investigates such claims. Another case, which alleged race discrimination by the same employer, resulted in a lawsuit and settlement.

Title VII bars employment discrimination on the basis of five factors: race, color, religion, national origin, and sex. This includes a wide range of actions by managers, supervisors, co-workers, customers, and others. The NJLAD also prohibits discrimination based on these factors and includes many more protected categories. Employers may not take overtly discriminatory actions against someone because of a protected factor, such as refusing to hire job applicants who are or are perceived to be Muslim. These laws also address less obvious forms of discrimination, such as workplace harassment motivated by an employee’s religion, race, sex, or other protected characteristics.

The two cases mentioned above involve female former employees of a major Wall Street asset manager. The plaintiff in the lawsuit is a Black woman who worked there from 2014 to 2020. She alleged that despite putting forth a “commitment to racial equality and inclusion” after the social justice protests of 2020, the firm had “​​serious race and sex discrimination problems of its own making.” The company, she claimed, routinely promoted white employees over Black employees with more experience and qualifications. She filed suit against the company at the beginning of 2021, alleging that she was forced out of the firm in retaliation for expressing her concerns about race discrimination. The suit was settled in the summer of 2021.
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Harassment in the workplace could violate state and federal antidiscrimination laws when it is based on a protected category, such as race, religion, national origin, or gender. In order to prevail on a New Jersey workplace harassment claim, a plaintiff must show that the behavior rose to such a level that it created a hostile work environment. Exactly when offensive behavior reaches this level depends on the circumstances of each case. In June 2021, the New Jersey Supreme Court ruled that a supervisor’s alleged use of a particular slur in the plaintiff’s presence on two occasions was enough to allow the case to go to trial.

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees on the basis of multiple factors, including race and national origin. A hostile work environment exists when harassment based on a protected category is so severe or pervasive that a reasonable person in the same position as the plaintiff would find the situation hostile or abusive. This usually involves conduct that interferes with a person’s ability to do their job.

The law’s use of the term “severe or pervasive” indicates that offensive conduct does not have to be widespread. A single incident can support a hostile work environment claim if it is bad enough. In the case that was before the New Jersey Supreme Court earlier this year, the plaintiff alleged two specific incidents involving a supervisor.
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Sexual harassment is a serious problem in workplaces throughout New Jersey and the country. New Jersey law views it as a form of sex discrimination. While perhaps the most common image of New Jersey workplace sexual harassment involves a male supervisor or manager acting offensively towards a female employee, it can occur between people of any gender. A pair of lawsuits filed in a New Jersey Superior Court earlier this summer allege same-sex sexual harassment. The plaintiffs are male police officers. They both claim that their supervisor, a male police lieutenant, subjected them to ongoing sexual harassment.

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of sex, sexual orientation, race, and multiple other factors. Numerous court decisions have held that sexual harassment constitutes sex discrimination under the NJLAD and other statutes in several situations. One of these, known as “hostile work environment,” occurs when an employee faces unwelcome conduct of a sexual nature in the workplace, which is so severe or pervasive that it interferes with their ability to do their job.

The first court cases to recognize sexual harassment as a form of sex discrimination involved male supervisors harassing female employees. In a 1998 decision, Oncale v. Sundowner Offshore Services, the U.S. Supreme Court recognized that male-on-male sexual harassment can also violate employment discrimination laws. The case involved a worker on an offshore oil drilling rig who faced repeated acts of humiliation by his coworkers, ranging from mockery about his perceived sexual orientation to outright assault. A unanimous court held that “harassing conduct” based on sex could violate the law even if it was not “motivated by sexual desire.”
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Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of sex and other factors. Compared to New Jersey employment discrimination law (the New Jersey Law Against Discrimination), Title VII’s list of protected categories seems short. Federal court decisions have expanded the scope of the statute beyond the narrowest literal meaning of its words, to include categories or actions mentioned more specifically in other laws. Most recently, a 2020 decision by the U.S. Supreme Court held that Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. In June 2021, the Equal Employment Opportunity Commission (EEOC) released guidance clarifying its interpretation of Title VII in light of the court’s ruling.

Federal law does not provide a specific definition of “sex” in the context of employment discrimination. The Supreme Court has built on the statute’s rather sparse language in several important rulings. In 1986, for example, the court ruled in Meritor Savings Bank v. Vinson that sexual harassment constitutes sex discrimination in violation of Title VII. That case involved sexual harassment of a female employee by a male supervisor. The court ruled in Oncale v. Sundowner Offshore Services in 1998 that sexual harassment of a man by male employees may also violate Title VII.

The Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins expanded the understanding of sex discrimination by holding that Title VII bars discrimination on the basis of “sex stereotyping.” The plaintiff in that case claimed that the defendant discriminated against her because she did not conform to expectations of how she should dress and behave as a woman. This decision did not lead directly to last summer’s ruling in Bostock v. Clayton County, but it set an important precedent.
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