In light of the recent scandal to hit Fox News and its former chairman and chief executive Roger Ailes,[1] it is worth revisiting and reexamining laws regarding sexual harassment in the workplace.
Sexual harassment, for legal purposes, is a form of discrimination falling under Title VII of the 1964 Civil Rights Act. This federal law ¨prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion.¨ The law applies to companies and federal, state and local governments with over fifteen employees. The Equal Employment Opportunity Commission (EEOC) of the federal government investigates discrimination complaints based on an individual's race, color, national origin, religion, sex, age, disability, sexual orientation, gender identity, or genetic information.
In New Jersey, the New Jersey Law Against Discrimination, NJLAD, is one of the most comprehensive statutes protecting employees against discrimination both in the workplace and for public accommodations. The NJLAD allows employees who believe they have been discriminated against in any way, including sexual harassment, to file either public or private complaint. If the employment is or was in New Jersey, except for federal government employees, in almost all situations it is better to file a discrimination claim under the NJAD, rather than the federal Title VII anti-discrimination law.
Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. It is important to understand that sexual harassment does not always occur in a hierarchical nature i.e. employer to employee and it is not always men harassing women. Sexual harassment is gender-neutral and women can just as easily sexually harass men. In practice, however, it is more common for women to file sexual harassment complaints against men.
There are two forms of sexual harassment in the workplace. One is Quid Pro Quo harassment. This is when submission to sexual favors is necessary for obtaining a raise, promotion, or simply for not being terminated. This is what is being disputed in Mr. Ailes´ case, as numerous female employees are claiming Mr. Ailes repeatedly proffered sexual favors as a means to higher wages and greater job security.
The other form of sexual harassment under which claims are filed is a “hostile work environment.” This can involve persistent comments, persistent dating requests, or sexually explicit, derogatory, or demeaning language. According to Noreen Farrell, many people who call the Equal Rights Advocates are not sure if what they are experiencing constitutes harassment. "Then they tell us they're getting persistent comments and dating requests and coworkers are calling women bitches. Nearly 100 percent of those callers are experiencing harassment."
Over the past 15 years the number of complaints filed has remained around 8,000, while at the same time a recent survey showed that roughly 1 in 3 women between the ages of 18 to 34 report having been sexually harassed at work. An overwhelming majority of incidents are not reported and many potential cases are not filed.
There are several steps employers can take to prevent sexual harassment, encourage victims to come forward, and limit their liability in the event of a lawsuit.
Create a clear sexual harassment policy. Define it, clearly state that it is not tolerated, and establish a procedure for reporting and investigating complaints.
Require employees to attend trainings about sexual harassment. Some states explicitly require this, but many states do not have laws requiring sexual harassment training.
Encourage employees to speak up and make it clear that doing so will be kept confidential and not affect their career opportunities.
Investigate all complaints and treat each one seriously. Don’t brush off rumors without giving them the attention they deserve.
If you believe you are facing sexual harassment at work, the first thing you should do is speak up. Perhaps the responsible party did not realize their conduct was offensive. If that does not resolve the issue, you should follow your company’s internal procedures for filing a claim – pay attention to the time limits set in the policy. If there is no formal procedure for filing sexual harassment claims, report it to your immediate supervisor.
Once internal methods have been exhausted, you can file a complaint with the Division on Civil Rights in the New Jersey Attorney General’s office, or with the federal government through the EEOC. In addition, you can seek independent legal advice and pursue appropriate remedies in both state and federal court.
For a claim to be successful under the New Jersey Law Against Discrimination, you will need to prove:
You are in a protected class - age, religion, race, gender, disability, sexual orientation, gender identity, marital status, etc.
That you were working up to the legitimate expectations of their employer
That you suffered adverse job action - suspended, demoted, terminated
And sometimes - that you were replaced by an individual not in the protected class of the employee or that the adverse employment action was directly related to your gender (or other protected class status)
The NJLAD generally has a two-year statute of limitations, but application of the statute of limitations can be complex. Check with an attorney, as soon as possible, if you believe you have been discriminated against.
[1] Although the Gretchen Carlson vs. Roger Ailes case relies on the New York City Human Rights Law, the principles discussed in the blog are similar.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.
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