New Jersey Attorneys Helping Victims of Sexual Harassment in the Workplace
In order to prove a claim of sexual harassment, the plaintiff must show three things by a preponderance of the evidence. First, a plaintiff must prove that the alleged conduct occurred. Second, if the conduct did occur, the plaintiff must show that it constitutes sexual harassment. Third, if the conduct constitutes sexual harassment, the plaintiff must demonstrate why the employer should be held responsible for the conduct.
How to determine if sexual harassment occurred
In determining whether or not the conduct actually occurred, the court must believe that the plaintiff has proven the alleged conduct by a preponderance of the evidence. This means that the plaintiff must have evidence that is more convincing and more likely to be the truth than the evidence of the defendant. If the defendant's evidence suggesting that the conduct did not occur is more convincing, then the claim will be dismissed.
Everyone has the right to feel safe in the workplace. If you have suffered from sexual harassment, call 973-440-2311 to schedule a consultation with the Mark Law Firm, or contact us online. We have office locations in Basking Ridge, Newark, and Oradell, New Jersey.
What is considered sexual harassment?
For the conduct to constitute sexual harassment, the plaintiff must prove by a preponderance of the evidence that the conduct occurred because of his or her sex, and that the conduct was severe or pervasive enough to make a reasonable man or woman believe that his or her work environment was intimidating, hostile, or abusive.
To prove that the offensive conduct occurred because of the employee's sex, the employee must show that the conduct or type of harassment was sexual or sexist in nature. In order to show this, the employee may point to the fact that only one gender was subject to harassment, or that the conduct was overtly sexual. This evaluation does not depend on the employer or offending employee's intent so long as a preponderance of the evidence shows that the conduct more likely than not occurred because of the plaintiff's sex.
In determining whether the conduct was severe or pervasive enough to make a reasonable person believe that his or her work environment was intimidating, hostile, or abusive, there are several factors to consider:
• First, vulgar or sexually-laced speech or conduct does not automatically create a hostile work environment. Instead, the offensive speech must be of sufficient severity or pervasiveness to create a hostile or intimidating work environment.
• Second, because the law only requires that the offensive conduct be severe OR pervasive, the conduct can consist of a single extreme incident or multiple less offensive incidents which must be considered together.
• Third, the plaintiff does not need to be the target of the harassment in order for a determination to be made that the plaintiff reasonably believed he or she was subjected to a hostile work environment. For example, witnessing offensive conduct directed towards another employee can be enough to constitute a hostile or intimidating work environment from the plaintiff's perspective.
• Fourth, when evaluating the severity or pervasiveness of the conduct, it must be considered from the point of view of a reasonable man or woman. For instance, if an over-sensitive person would find the conduct offensive enough to create a hostile or intimidating work environment, but a reasonable person would not, then the conduct is not sufficiently severe or pervasive.
• Fifth, the plaintiff does not need to show that he or she has been harmed by the conduct. Although these issues will affect a determination of damages, they are not relevant in determining whether the conduct constitutes sexual harassment.
If the above factors lead the court to determine that the offensive conduct was severe or pervasive enough to create an intimidating, hostile, or abusive work environment, then the conduct constitutes sexual harassment. Once classified as sexual harassment, a determination must be made as to whether the employer should be held liable for the offensive conduct.
Should the employer be liable for sexual harassment?
In New Jersey, an employer is not automatically liable for all the damages caused by a supervisor or employee who sexually harasses another employee. For instance, the employer will not automatically be liable for damages due to emotional distress, but will automatically be liable for all economic damages, such as wage loss. In order to prove liability for emotional distress damages, a plaintiff must prove one of the following by a preponderance of the evidence: that upper management knew or should have known about the harassment and failed to do anything to stop it; that the employer gave the offending employee authority to control the working environment of the victimized employee and used that authority to create a hostile work environment; or, that the employer negligently failed to take reasonable steps to prevent the harassment.
When trying to show that an employer has failed to take remedial action to correct sexual harassment, a plaintiff must prove by a preponderance of the evidence that the defendant employer knew, or should have known, about the harassment, and did not try to stop it. If the employer took reasonable steps to try to stop the harassment, then it will not be held liable under this theory.
To find an employer liable on a theory of delegation of authority, the plaintiff must prove by a preponderance of the evidence that the employer delegated authority to the offending employee, the offending employee exercised that authority, the exercise of that authority resulted in sexual harassment, and the authority aided the harasser in sexually harassing the plaintiff. In order for this theory to be upheld, all of the above elements must be met. Failure to prove any element will result in the employer not being held liable based on a delegation of authority.
In determining whether the employer was negligent in preventing the harassment, the court will consider the existence and effectiveness of the following mechanisms: well-publicized and enforced anti-harassment policies, effective complaint structures, anti-harassment training, and effective monitoring of potential sexual harassment. Although the existence or absence of any of these measure does not automatically give rise to or eliminate negligence, they can be used by the court in determining if the employer can be held liable on a theory of negligence.
If the plaintiff is able to prove by a preponderance of the evidence that any of the above three tests are met, the employer can be held liable for not only economic damages, but also damages related to emotional distress. If none of the above tests are met, the employer will not be liable for any emotional distress damages, but may still be liable for economic damages, such as lost wages, which are a result of sexual harassment.