Generally speaking, workplace sexual harassment claims filed under the New Jersey Law Against Discrimination (the “LAD”) fall into two categories:
(1) Quid pro quo sexual harassment claims arise when a supervisor or manager offers a subordinate employee perks or favors in exchange for sexual relations or attention. Such offers may be explicit or strongly implied. For example, a supervisor might stroke a subordinate’s back while promising the subordinate a raise if he or she agrees to a date.
(2) Hostile work environment sexual harassment claims arise when an employee is subjected to severe and pervasive harassment on the basis of sex. Such harassment often includes unwanted touching, jokes or comments about the employee’s appearance, and vulgar sexual references directed at the employee. To support a claim, the totality of this harassing conduct needs to be so serious that a reasonable employee in the plaintiff’s situation would believe that their working environment was hostile and abusive.
Most of the sexual harassment cases I’ve handled in the course of my practice have been hostile work environment claims. Further, most of the free consultations I give to potential clients involve hostile work environment harassment. As I talk to these clients about their circumstances, the question inevitably arises: Was my employer’s conduct egregious enough to prove a hostile work environment? How many instances of harassing behavior do you need to support a hostile work environment claim? How “severe” does such behavior need to be?
To answer this question, we have to look to state and federal caselaw for New Jersey, and unfortunately, the courts have not always been consistent in determining what amounts to a “hostile work environment.” In other words, “hostile work environment” is a legal term of art that often gets interpreted differently, depending upon the judge. For instance, some courts may find a hostile work environment where a plaintiff was subjected to a handful of especially crude remarks; other courts might reject that approach and find a hostile work environment only if such remarks were fairly constant and ongoing.
Suggested Clarifications to the LAD
Recognizing this problem, in February of 2020, the Office of New Jersey Governor Phil Murphy released its “Proposals to Strengthen New Jersey’s Anti-Harassment Laws.” One key proposal is to clear up the confusion over the meaning of “hostile work environment” by including a more precise definition of the term in the LAD. Specifically, Governor Murphy seeks to:
Change the LAD to state that courts must look to the “totality of the circumstances” in deciding whether a plaintiff suffered a hostile work environment.
In particular, Murphy wants to codify that:
(a) A single instance of harassing conduct may be egregious enough to support a hostile work environment claim. This provision is in response to a 2013 federal court decision, Clayton v. City of Atlantic City, 538 Fed. Appx 124, 129 (3d Cir. 2013), in which an appellate court held that a single episode where a supervisor grabbed an employee’s buttocks was not “severe or pervasive” enough to amount to a hostile work environment. As such, it’s safe to assume this provision would cover intentional and particularly aggressive instances of unwanted touching.
(b) De minimus instances of harassing conduct must be considered. Murphy’s proposal makes clear that small acts of harassment like “petty slights or trivial inconveniences” (e.g., your harasser refusing to participate in your office birthday celebration), in and of themselves, cannot establish a hostile work environment. However, these slights and inconveniences must still be considered by the court in evaluating the whole of the plaintiff’s circumstances.
Change the LAD to state that a plaintiff’s subjective responses to the harassing conduct must be considered in determining whether a “reasonable person” would find the harassment amounted to a hostile work environment.
Additionally, Murphy seeks to change the LAD to state that a plaintiff’s knowledge of harassment directed at others is relevant to the determination of a hostile work environment, regardless of whether the plaintiff witnessed or has direct knowledge of such harassment. This provision is in response to Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 198 (2008), in which our state Supreme Court stated that alleged harassing conduct must be considered objectively, “stripped of the overlay of [plaintiffs’] subjective reactions; and that harassing conduct not directed at or witnessed by plaintiff cannot factor into the analysis of a hostile work environment claim.
Define “harassing conduct.”
Generally, Murphy seeks to define harassment as behavior including, but not limited to “physical contact or gestures, threats, abusive or offensive language, damage to or interference with personal property, or offensive written or verbal communications or comments, whether such conduct is of a sexual nature or otherwise. Harassing conduct shall not be construed to require physical contact to qualify as severe or pervasive.” Presumably then, this proposed language would require courts to consider all aggressive remarks, jokes, etc. directed at a plaintiff by an alleged harasser, without regard to whether they related to the plaintiff’s sex.
Expressly disavow any necessity of demonstrating loss of job benefits or productivity in proving a hostile work environment.
The foregoing proposed changes would alter the LAD to encompass a much broader and more inclusive definition of hostile work environment sexual harassment. Employers and employees alike should keep an alert eye on the progress of Murphy’s proposals and our state legislature’s response. If you’re facing issues in the workplace and feel that you may possibly have a LAD claim on your hands, get in touch with our office today for a free consultation.