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Articles Posted in Sexual Harassment

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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New Jersey employment discrimination law prohibits sexual harassment in almost every workplace in the state, but it still remains a serious problem. Lawmakers in Trenton introduced a bill at the beginning of 2021 that sought to address sexual harassment in political campaigns. After several revisions and amendments, the New Jersey Senate passed the bill in June 2021. A companion bill, introduced in the Assembly in February 2021, is still awaiting a committee hearing.

Sexual harassment is viewed under state and federal law as a form of unlawful discrimination on the basis of sex. Court decisions interpreting statutes like the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 have identified two broad categories of actionable sexual harassment:
– “Quid pro quo sexual harassment” occurs when a person must submit to some sort of sexual demand as a condition of employment, such as a manager who hands out favorable shift assignments or other perks to employees who agree to sexual activity.
– “Hostile work environment” involves unwelcome conduct of a sexual nature in the workplace, which is pervasive or severe enough that a reasonable person would find it to be hostile and incompatible with a safe workplace.

Both statutes also prohibit employers from retaliating against employees who oppose or report unlawful practices. While these laws protect a wide range of workers, sexual harassment in the political realm can be complicated. Title VII excludes the federal government itself from liability for discrimination and harassment, but other statutes allow claims against government employees, and even elected officials. See, e.g. 42 U.S.C. § 2000e(b)(1), 2 U.S.C. § 1311. The NJLAD, on the other hand, includes “the State…and all public officers” in its definition of “employer.” N.J. Rev. Stat. § 10-5:5(e).
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Employment discrimination or harassment claims under the New Jersey Law Against Discrimination usually involve actions by specific employees, supervisors, managers, or executives. In order to make a successful New Jersey employment discrimination claim, a plaintiff must establish that the employer is legally responsible for the actions of that person or those people. This is known as “vicarious liability.” The New Jersey Appellate Division recently ruled in favor of a plaintiff in her hostile work environment lawsuit, reversing the trial court’s summary judgment for the defendant. The appellate court held that the plaintiff had raised a question as to whether her alleged harasser had acted within his authority as a supervisor when he told the plaintiff to “leave and don’t come back.”

Hostile work environment is a type of sexual harassment that occurs when one or more people engage in unwelcome sexual conduct to the point that a reasonable person would consider it to render the workplace hostile. An employer can be held vicariously liable for a hostile work environment perpetrated by any employee, even if they do not have authority over the plaintiff, as long as the employer knew or should have known about the harassment and failed to act.

The New Jersey Supreme Court issued a ruling in 2015 that defined a rule for determining whether vicarious liability should apply to an employer in sexual harassment and similar claims, when the alleged harasser was in a position of authority over the plaintiff. It based this rule on the Ellerth/Faragher analysis, named after two Supreme Court rulings from 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. The Ellerth/Faragher analysis states that a defendant can avoid vicarious liability if it can establish three elements:
1. It “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”;
2. The plaintiff “unreasonably failed to take advantage of” the remedies offered by the employer; and
3. The plaintiff was not subject to any “tangible employment action” by the alleged harasser.
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The New Jersey Superior Court, Appellate Division has revived a lawsuit alleging employment discrimination on the basis of gender under state and federal laws. The plaintiffs allege that a set of “personal appearance standards” (PAS) maintained by their employer, an Atlantic City casino, discriminated on the basis of gender. They further claim that the defendant enforced the PAS in a harassing manner. The case has followed an unusual path. In 2015, the Appellate Division partially reversed a Law Division order granting summary judgment to the defendant. The Law Division proceeded to grant summary judgment to the defendant again in July 2016. The Appellate Division reversed the Law Division’s order in May 2019. It found that the Law Division was bound by the 2015 ruling and that the court erred by dismissing the case on remand. The appellate court remanded the case once more, ruling that “after a decade of motion practice and appeals, plaintiffs are entitled to their day in court.”

State and federal employment statutes in New Jersey prohibit employment discrimination on the basis of sex and gender. Court decisions and statutes have defined multiple forms of unlawful sex discrimination. These include “hostile work environment,” a form of sexual harassment in which pervasive and unwelcome sexual remarks or behavior render an employee unable to perform their job duties. Discrimination on the basis of “sex stereotyping,” in which an employer takes an adverse action against an employee because they do not fit certain stereotypes about members of their sex, is also unlawful. In some situations, employees can establish violations of anti-discrimination laws based on the disparate impact of a policy or practice, even if the employer did not intend to discriminate on the basis of sex or another factor.

The plaintiffs in the above-described lawsuit worked as “costumed beverage servers.” They had to agree to the PAS as a condition of employment. The PAS mandated specific features like “a natural hourglass shape” for women and “a natural ‘V’ shape with broad shoulders and a slim waist” for men. The defendant reportedly modified the PAS in February 2005 in order “to elucidate the ‘weight proportioned to height’ standard.” The revised PAS stated that employees’ weight could not increase by more than seven percent, as compared to their weight when they were hired. Weigh-ins occurred at seemingly random times. These changes formed the basis of many of the complaints leading to the lawsuit.
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When an employee begins working for an employer, they are often required to sign an employment agreement that establishes numerous features of the employer-employee relationship. Most provisions involve standard matters like job expectations, wages, and termination of the employment relationship. Employment agreements may also include provisions for nondisclosure of various types of information, as well as waivers of certain rights. When employers and employees enter into settlement agreements to resolve disputes, an employer may seek a nondisclosure clause as well. Provisions like these may hinder individuals’ ability to assert their rights under employment statutes like the New Jersey Law Against Discrimination (NJLAD). At least partly in response to increased attention on sexual harassment in the workplace, the New Jersey Legislature enacted a bill in January 2019 that amends the NJLAD to prohibit enforcement of certain nondisclosure agreements, as well as waivers of rights under the NJLAD or similar statutes.

The NJLAD prohibits employers from discriminating against employees on the basis of race, religion, sex, age, sexual orientation, gender identity or expression, and many other factors. Courts have held that prohibitions on sex discrimination in the NJLAD and other laws cover sexual harassment, as well as harassment based on other protected factors. Unlawful harassment generally includes two scenarios: (1) acquiescence to or tolerance of harassing behavior, including sexual advances, is made a condition of employment; and (2) pervasive and unwelcome harassing behavior creates a hostile work environment that interferes with an individual’s ability to perform their job duties.

The #MeToo movement has allowed people all over the country to come forward with their own experiences, when many of them might have been afraid to do so before. Nondisclosure agreements (NDAs) in discrimination and harassment cases may prevent people with similar experiences from sharing their stories. Last year, California and New York enacted limits on NDAs in situations involving alleged sexual harassment. California now prohibits NDAs that purport to “prevent[] the disclosure of factual information related to a” lawsuit or administrative complaint alleging sexual harassment. New York now has similar provisions in its laws barring NDAs in settlements and other resolutions of sexual harassment disputes.
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Litigation is perhaps the most well-known method of dealing with legal disputes, but it is not the only method. Our legal system increasingly encourages would-be litigants to use alternative dispute resolution (ADR) before, or instead of, going to court. Many contracts now include clauses requiring the parties to submit disputes to arbitration. While arbitration may offer some benefits over the court system, it is subject to numerous criticisms in disputes involving a significant imbalance of power and resources. If you have questions of this nature, contact a New Jersey employment attorney without delay.

Court decisions interpreting New Jersey’s employment antidiscrimination statute have invalidated provisions of arbitration agreements that infringe on statutory rights. Federal law, on the other hand, favors arbitration over litigation in most cases. Several major technology companies, employing thousands of people, recently dropped mandatory arbitration of sexual harassment claims, which may allow more claims to see the light of day.

Statutes like Title VII of the federal Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination in employment on the basis of sex, and include sexual harassment as a form of unlawful sex discrimination. In order to assert a claim under these statutes, an individual must first file a complaint with a state or federal agency like the Equal Employment Opportunity Commission (EEOC). The agency will investigate the claim, and if it determines the claim to have merit, it will issue a “right to sue” letter. This allows the complainant to file suit in state or federal court. Arbitration clauses in employment contracts prevent employees from accessing this process.

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In New Jersey, sexual harassment in the workplace is considered a form of unlawful sex discrimination. The elements that a plaintiff must prove can vary depending on the circumstances of the case, and several defenses are available to defendants. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on a defendant’s use of the Faragher-Ellerth affirmative defense. A defendant can overcome liability under federal law if they can prove, in part, that a plaintiff unreasonably failed to report alleged sexual harassment. The plaintiff did not report alleged sexual harassment by her supervisor for four years. The court rejected the defendant’s claim that this was per se unreasonable under Faragher-Ellerth, citing the recent revelations of the #MeToo movement. Minarsky v. Susquehanna Cty., No. 17-2646, slip op. (3d Cir., Jul. 3, 2018).

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Numerous court decisions have applied this to sexual harassment. When an alleged harasser is a coworker of the complainant, or is otherwise not part of the company’s management, the employer is only liable if it was aware of the alleged harassment and failed to make reasonable efforts to remedy the situation.

The Faragher-Ellerth affirmative defense is partially based on this obligation to notify the employer and seek internal remedies. Since it is an affirmative defense, the burden of proof shifts to the defendant to prove two elements:
1. “[T]he employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); and
2. The complainant “failed to [use] reasonable care to take advantage of the employer’s safeguards and…to prevent harm that could have been avoided.” Faragher v. Boca Raton, 524 U.S. 775, 805 (1998).
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Professional football presents multiple legal issues related to employment. New Jersey officially has no team in the National Football League. That said, both of the New York-based NFL teams, the Giants and the Jets, have used stadiums in Northern New Jersey as their home fields since the early 1980s. Issues affecting players in the NFL, particularly the lasting effects of concussions and other injuries, have received media attention in recent years. NFL cheerleaders have also made a variety of complaints regarding wages, working conditions, and sexual harassment. In 2016, the New York Jets settled a New Jersey wage and hour lawsuit filed on behalf of a class of NFL cheerleaders. In 2018, a former cheerleader, who had recently been fired by another team, filed a sex discrimination complaint with the Equal Employment Opportunity Commission (EEOC).

While NFL players usually receive generous salaries under contracts with their teams, cheerleaders are often paid far less and do not have the protection of a defined term of employment. NFL cheerleaders have recently made several successful wage claims. A lawsuit filed in New Jersey in 2014, Krystal C. v. New York Jets LLC, alleged that the compensation received by members of the Jets’ cheerleading squad, when compared to the number of hours they were required to work, was often substantially less than minimum wage. Cheerleaders were paid $150 per game and $100 for appearances at team-sponsored events, but not for other required activities like practices and rehearsals. The parties entered into a settlement agreement in 2016, in which the team agreed to pay $325,000 to the class of plaintiffs.

Claims of sex discrimination involving NFL cheerleaders have not received as much attention in the court system as wage claims. Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination prohibit discrimination on the basis of sex. Cheerleading, as an occupation, presents some challenges in this area. Technical skill, including proficiency in dance, is not the only requirement for the job of cheerleader. To put it bluntly, cheerleaders are expected to meet a particular standard of physical attractiveness.

The New Jersey Law Against Discrimination (NJLAD) is among the most expansive anti-discrimination statutes in the country, protecting employees from discrimination on the basis of multiple factors, including sexual orientation. Title VII of the federal Civil Rights Act of 1964 has far fewer expressly protected categories. Some federal courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, finding that the statute’s prohibition on sex discrimination encompasses sexual orientation as well. Other courts have ruled that sexual orientation discrimination is not discrimination on the basis of sex within Title VII’s meaning. The U.S. Supreme Court rejected a petition for certiorari in late 2017 that raised this question, Evans v. Georgia Regional Hospital. Since a conflict exists among lower court rulings on this issue, it is likely that the Supreme Court will accept a case at some point in the future.

The NJLAD states that an employer commits an unlawful employment practice by discriminating on the basis of “affectional or sexual orientation.” N.J. Rev. Stat. § 10:5-12(a). Title VII only mentions five factors:  “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The U.S. Supreme Court has clarified the legal meaning of “sex” under Title VII in several rulings. This includes recognition of sexual harassment and “sex stereotyping” as forms of unlawful sex discrimination.

Many Title VII lawsuits alleging sexual orientation discrimination have cited the “sex stereotyping” ruling, which held that “assuming or insisting that [employees] matched the stereotype associated with their [sex]” could be evidence of sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Another commonly cited decision ruled in favor of a male plaintiff alleging sexual harassment by male co-workers, reportedly based on their negative perceptions of the plaintiff’s sexual orientation. The court held that harassment does not need to “be motivated by sexual desire” to constitute sexual harassment, and therefore sex discrimination, under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998).

Anti-discrimination laws in New Jersey, at the federal level, and in other states around the country prohibit discrimination in employment based on numerous factors, including sex. These prohibitions on sex discrimination include sexual harassment. The past few months have seen a possibly unprecedented series of allegations and revelations about sexual harassment in the entertainment industry and in Washington, D.C. Even before that, however, people involved in technology startups in California and elsewhere were coming forward with allegations of sex discrimination and sexual harassment. Many of these involved female entrepreneurs and male investors. These cases often present a legal quandary for people claiming sexual harassment, since the types of employer-employee relationships covered by anti-discrimination statutes are not always present in the entrepreneurship model. New Jersey is also home to many startup businesses, making this an important issue for New Jersey sexual harassment claimants as well.

The New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 prohibit sexual harassment as a form of sex discrimination. Sexual harassment consists of a range of unwelcome behaviors of a sexual nature, including remarks, jokes, overtures or advances, direct requests for sexual contact, and unwanted touching or assault. This type of conduct constitutes unlawful sex discrimination when an employer makes sexual activity a condition of employment, or when the offensive conduct creates a hostile working environment for an employee. Employers are often held vicariously liable for sexual harassment by a supervisor, manager, executive, or director against someone who works in a subordinate position. If the alleged harasser is a co-worker, the employer may be liable if they are aware of the harassment but fail to take reasonable measures to address it.

Startup companies are, broadly speaking, businesses in the very early stages of development that offer some sort of novel product or service. No distinct definition of “startup” exists, but perhaps a key feature of a startup is that its operating expenses exceed its income—if any income exists—and its business model is at least partly unproven. Many startups therefore rely on investors to fund initial development and growth. Venture capitalists (VCs) are in the business of investing in startups, providing money for the company and, often, mentoring for the entrepreneurs. Many of the recent allegations of sex discrimination and sexual harassment originate in interactions between entrepreneurs and VCs.

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