Sexual Orientation Harassment: Do I Have a Claim Under New Jersey Law?

Last updated Oct. 18, 2018.

Among other forms of employment discrimination, the New Jersey Law Against Discrimination (“NJLAD”) prohibits hostile work environment discrimination. Generally speaking, this means that the NJLAD prohibits employers from harassing employees on the basis of certain protected categories (like race or gender), to the point that the workplace becomes hostile to those employees.

But what happens when you are discriminated against based on your sexual orientation?

In this post, we’ll take a look at hostile work environments, what is protected under New Jersey law in the workplace, and how to know if you have a sexual orientation harassment claim.

What is Considered a Hostile Work Environment?

What exactly is a “hostile” workplace? The New Jersey Supreme Court helped explain the answer in Lehmann v. Toys ‘R’ Us, Inc. In that decision, in which Theresa Lehmann brought a civil action against her former employer, supervisor, and human resources manager, the Court stated that harassment creates a hostile work environment where an employee can allege conduct that:

  1. Would not have occurred but for the employee’s protected status (in other words, conduct that would not have occurred if the employee were not African-American, or female, or gay, etc.), and
  2. Is severe or pervasive enough, such that
  3. A reasonable person with the employee’s trait would believe that
  4. The conditions of employment have been altered and the working environment is hostile or abusive.

In Lehmann, the plaintiff alleged that she was sexually harassed and suffered damages, including lost wages and pension benefits, anxiety, medical expenses, and pain and suffering. A trial court dismissed these claims, but an appellate court reversed the ruling and it went to the state Supreme Court.

There, the aforementioned new tests changed standards for evaluating harassment claims. An employer can also be held “strictly liable” for sexual harassment of employees.

See also: Forced to Quit Your Job Due to Harassment? Constructive Discharge in NJ

LGBT Rights in New Jersey Workplaces: Being Gay isn’t a Case for Discrimination

As we’ve discussed before, sexual orientation (as well as perceived sexual orientation) is a protected category under the NJLAD, and therefore can serve as the basis of a hostile work environment harassment claim.

However, given the Lehmann test, what kinds of conduct do New Jersey courts consider severe or pervasive enough to create a hostile work environment based on sexual orientation? Must an employee be subject to physical abuse? Or unrelenting homophobic slurs? Or simply subject to rudeness and what the employee believes to be a “nasty attitude”?

New Jersey case law sheds some light on the issue. Our courts have made clear that the NJLAD “is not a general civility code for workplace conduct and neither rudeness nor lack of sensitivity alone constitutes harassment.” Heitzman v. Monmouth County. As such, things like habitual brusqueness or a frosty demeanor toward a gay employee are unlikely to support a sexual orientation harassment claim.

Do I Have a Sexual Orientation Harassment Claim?

Conduct that explicitly expresses bias or hate toward an employee because of sexual orientation, however, does support a sexual orientation harassment claim. The case of L.W. v. Toms River Regional Schools Board of Education is illustrative here. Although the case involved student harassment in a school environment, the court used the same legal reasoning applied to employees in a work environment.

The student in question was taunted and physically assaulted by other students (slapped, punched, and struck) on the basis of the perception that he was homosexual. Moreover, he was called “gay,” “homo,” and “faggot,” and subjected to offensive sexual gestures. Not surprisingly, the court held this qualified as severe and pervasive harassment under the NJLAD.

Of course, the kind of brute physical bullying described in the L.W. case is seldom seen in the workplace. Homophobic comments and jokes, unfortunately, sometimes are and, depending upon their severity, can support a harassment claim.

Again, words that explicitly express bias or hate because of sexual orientation plainly amount to harassment. For instance, in a somewhat recent decision, Kwiatkowski v. Merrill Lynch, a New Jersey court held that even a single homophobic slur was severe enough to create a hostile work environment.

Kwiatkowski involved a gay male employee who believed he heard his supervisor call him a “stupid faggot” under her breath. The court stated this comment alone was enough to form the basis of the worker’s hostile work environment suit, reasoning that it was akin to a racial epithet.

Get Legal Help with Your LGBT Harassment Case

Given the above, a very general rule of thumb is that, the more an employer’s words and conduct specifically attack and can be attributed to an employee’s sexual orientation, the more likely they support a claim for unlawful sexual orientation harassment.

Keep in mind, though, that even if an employee succeeds in meeting the legal hurdles necessary to bring a sexual orientation harassment claim, credibility remains an important and separate issue. In other words, even if a court allows you to bring a hostile work environment harassment claim, whether a jury believes you were harassed is an entirely different ballgame.

With that in mind, if you believe you are being subjected to a hostile work environment based on your sexual orientation, you should try your best to document any harassing words/conduct, and to report any such words/conduct to the appropriate supervisor as soon as possible after it occurs.

You may also have a legal claim and can recover compensation for lost wages or suffering. Contact the experienced hostile work environment lawyers of Zatuchni & Associates today for a free consultation.

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