Category Archives: Discrimination

How Much Can I Get When Suing My Employer For Discrimination?

How Much Can I Get When Suing My Employer For Discrimination

People who have been the victim of workplace discrimination or harassment might wonder how much they might expect to recover if they file lawsuits against their employers. While some cases do proceed to trial, a majority are settled outside of the court process. If you have been the victim of discrimination or harassment at your job, the attorneys at Swartz Swidler might value your claim and advise you of the amount that you might expect to recover.

Income losses

If you were fired from your job illegally, you may recover the salary and benefits that you would have received if you were not fired. It is important for you to understand that you are expected to have tried to mitigate your damages by trying to find a new job. If you haven’t attempted to do so, your claim’s value may be significantly reduced.

Emotional distress damages

In some cases, workers are able to successfully sue for the emotional stress that their employers’ conduct has caused them. In order to prove that you have suffered emotional harm, you will likely need to have a mental health professional testify on your behalf. You will not need to have been diagnosed with a condition such as anxiety or depression. It is possible to recover damages for the type of stress that people experience when they are terminated from their jobs.

Are you in a position to file a lawsuit?

An employment lawyer at Swartz Swidler may discuss several things with you in order to determine whether or not you are in a position to file a lawsuit against your employer. Your lawyer will explain that lawsuits are very long and sometimes take years before they reach settlements. Employers often defend against lawsuits aggressively and are slow to settle because of concerns that other workers will also file lawsuits.

Your attorney might also explain that your former employer may attack your reputation. In order to defend against claims of discrimination, some employers claim that they had other reasons to fire their employees. To make these claims, they may try to prove that you were a poor employee.

You will need to evaluate the strengths and weaknesses of your claim. Then, you will need to work together with your attorney to determine what a reasonable demand for settlement should be. Finally, you will need to decide whether or not you are willing to go through the lengthy process so that you can potentially recover compensation and hold your employer accountable.

How strong is your claim?

Your attorney will also evaluate the strength of your claim when determining its value. If it is not a strong case, the attorneys at Swartz Swidler will provide you with an honest assessment.

The attorneys at Swartz Swidler are focused on employment law and work hard to help their clients who have suffered from illegal discrimination. If you believe that your employer has discriminated against you, contact us today to schedule your consultation.

Can I Be Fired Because of My Tattoos?

Can I Be Fired Because of My Tattoos-

If you have tattoos, you might wonder if it is legal for your employer to fire you because of them or to make you cover them while you are working. Whether or not your employer can fire you for your tattoos or require you to cover them will depend on the dress code and grooming policies that your employer has in place. It will also depend on whether or not your employer is consistent in enforcing those policies and whether or not your tattoos have religious significance for you. The attorneys at Swartz Swidler might help you to determine if you were treated wrongfully because of your tattoos.

Employer grooming and dress code policies

Employers are allowed to implement grooming standards and dress codes in their workplaces. For instance, a doctor’s office might require front-office employees to dress in business clothing while a restaurant might mandate that its servers wear pants and shirts of specific styles and colors.

Some workplaces likewise have policies about employees who have tattoos. They might ask that employees cover them up while they are working with clients or customers. Appearance policies are legal unless they violate federal and state laws that prohibit discrimination. These policies may also be illegal if they are applied in discriminatory ways.

Anti-discrimination laws

Employers are prohibited from taking adverse job actions based on certain protected characteristics, including color, race, sex, national origin and religion. There are also laws prohibiting discrimination on the basis of age, disability and genetic information. In New Jersey, the Law Against Discrimination provides protection under state law.

Employers who apply their grooming policies in discriminatory ways may be in violation of the law. For instance, if employers require their Hispanic workers to cover their Spanish-language tattoos because they believe that they might be perceived as gang-related, that would be prohibited discrimination based on the workers’ national origin. Employers who enforce their policies on the basis of sex may also be in violation of the law.Some employees with religious tattoos who were asked to cover them or fired because of their tattoos have sued on the basis of religious discrimination.

Freedom of speech

Some people think that their First Amendment rights are violated when their employers require them to cover their tattoos. The First Amendment only protects people from governmental efforts to stifle speech. Private-sector employers are private actors and are not covered under the requirements of the First Amendment.

Contact an experienced employment law attorney

If you believe that your employer applied its appearance policy in a discriminatory way against you, you might be able to file a lawsuit. Contact Swartz Swidler to schedule your consultation today.

Common Mistakes Employers Make Concerning The Older Workers’ Protection Act

Common Mistakes Employers Make Concerning The Older Workers' Protection Act

Many employment law attorneys receive requests to review severance offers. If you have received a severance offer, you may want to have your offer reviewed by an experienced attorney at Swartz Swidler to make certain that it complies with the requirements of the Older Workers’ Benefit Protection Act, or the OWBPA. Roughly half of all severance offers do not comply with the OWBPA.

OWBPA requirements for a release of age discrimination claims

Many severance offers will ask workers to release their rights to file age discrimination claims. In order for these to be valid, they must adhere to the following:

  • The waiver must be understandable and in writing.
  • It must refer to ADEA claims or rights.
  • The employee cannot waive claims or rights that might arise in the future.
  • Valuable consideration must be offered in exchange for the waiver, which must be more than the employee is otherwise entitled to receive.
  • The employee must be advised in the waiver in writing to consult with a lawyer before signing.
  • The employee must be given at least 21 days to consider the waiver agreement and at least seven days to revoke it after signing.

Any severance offers to employees who are older than 40 must comply with these requirements. Waivers that are requested in connection with a workforce reduction have additional requirements.

Waivers in workforce reductions

When waivers are requested as parts of the severance offers that are extended to a group or class of employees, each individual employee must have at least 45 days to decide whether or not to agree to the waiver instead of 21 days. The workers must also be given a list of the ages and job titles of those who are eligible for the program along with the ages of those people in the same unit or with the same job classification who were not selected for the program.

This means that employers who are offering severance packages to reduce their workforces must give all of their employees who are 40 or older with a list of the employees in the same unit who are being offered the severance package in order to waive their claims. The employers must also disclose the eligibility criteria that they used for the severance programs. If the employers fail to comply, the waivers will be invalid.

Contact Our Attorneys

If you are older than 40 and have been offered a severance package in exchange for a waiver of your rights under the ADEA, you might want to consult with the experienced employment lawyers at Swartz Swidler. Our attorney may help you to evaluate the waiver and determine whether or not it complies with the OWBPA. Contact us today to learn about your rights.

7 Things You Didn’t Know About Pregnancy Discrimination

7 Things You Didn't Know About Pregnancy Discrimination

If you are pregnant and employed, you are protected by the Pregnancy Discrimination Act. This law protects working women who become pregnant by prohibiting discrimination based on pregnancy. Despite this law, some employers still discriminate against pregnant workers. If you believe that you have been the victim of pregnancy discrimination, the attorneys at Swartz Swidler might be able to help you.

It is important for you to understand your rights as a pregnant employee. Here are seven important things that you need to understand about workplace pregnancy discrimination.

1. PDA prohibits discrimination in all employment aspects

You are protected under the PDA in all aspects of employment, This includes hiring, promotions, firing, salary and other benefits. Your employer may not have policies that prevent women from doing certain jobs just because they are pregnant or capable of becoming pregnant. Policies that have a disparate impact on women because of pregnancy or fertility are also prohibited.

2. Covered workplaces

Employers who have 15 or more employees are covered by the PDA. If your workplace has fewer than 15 employees and is in New Jersey, your employer is also covered under the New Jersey Law Against Discrimination.

3. Retaliation is prohibited

Retaliatory employment actions by employers against pregnant workers are also prohibited. If you are fired because you filed a complaint about pregnancy discrimination, you may have grounds to file a suit for retaliatory discharge as well as pregnancy discrimination.

4. Promotions

It is illegal for employers to pass over workers for promotions simply because they are pregnant. This may constitute a violation of the PDA.

5. Pregnancy and maternity leave

If you need to take maternity or pregnancy leave, the PDA mandates that your job must be held open for you just as long as it would be held open for a worker who is on leave because of a disability or illness.

6. Disclosure is not required

You are not required to inform potential employers or your current employer about your pregnancy. Employers are forbidden from refusing to hire workers because they are pregnant as long as they are able to perform the functions of their jobs. They also cannot ask workers if they are pregnant or if they plan to get pregnant in the future.

7. Some organizations can treat pregnant, unmarried women differently

Courts have held that certain religious organizations or companies that work with young people may discriminate against workers who violate the standards against premarital sex. Employers who do this must also treat men who engage in premarital sex in similar fashions. At a majority of companies, pregnancy-related benefits may not be limited to only those employees who are married.

How to complain

If you believe that your rights have been violated under the PDA, you can file a discrimination charge with the Equal Employment Opportunity Commission. It is important for you to act quickly because the deadline for the complaint is normally within 180 days of the discriminatory act.

When you are preparing to file your charge, make certain to write down everything that happened, including the place, date and time of the incident. It is important to do this as soon as possible after it happens. Keep copies of your notes at your home.

If your company has a union representative, talk to him or her. You should also speak to your employer and check your employee handbook. Continue doing a good job at work and keep a record of it. Keep copies of all of your job evaluations along with any memos or letters that document your job performance.

While you are not required to have an attorney to file a discrimination charge, you might benefit from getting legal help. Contact Swartz Swidler to schedule your consultation today.

Establishing a Prima Facie Case of Discrimination Under Title VII

Establishing a Prima Facie Case of Discrimination Under Title VII

In Latin, prima facie means at first glance. When a litigant is in court, he or she can make a prima facie case by submitting evidence that would be enough to support his or her allegations if they were believed by the jury or judge. When a worker sues his or her employer for discrimination under Title VII of the Civil Rights Act of 1964, the worker must have enough evidence for a prima facie case of discrimination. If the worker meets that initial burden, the burden of proof shifts to the employer, who must present evidence that there was a nondiscriminatory reason for the disputed employment decision. The worker will then be able to challenge the evidence offered by the employer by showing that the employer’s reasons were pretextual.

Title VII

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against members of the Title VII protected classes. This includes discrimination on the basis of sex, religion, color, race or national origin. Employers are likewise prohibited from retaliating against workers who have participated in an investigation or exercised their rights to file discrimination complaints.

What is a prima facie case of discrimination?

Workers establish a prima facie case by meeting the elements of a test that has been established by the courts. If the workers cannot meet these elements, the employers can request dismissals of the lawsuits. The employee must show all of the following:

  • The worker is a member of a protected class
  • The worker has the qualifications for the job.
  • The worker was denied the job.
  • The employer either filled the job with a worker who is not a member of a protected class or kept the position open without filling it.

What the employer must show

After a worker has established a prima facie case, the burden shifts to the employer. The employer must submit evidence showing that the decision was made because of a nondiscriminatory and legitimate reason. For instance, in a case involving an employee who claims that she was fired because she is a woman, an employer might present evidence that the woman was fired because of her poor job performance.

Rebutting the employer’s reason with pretext

After the employer has presented its evidence, the worker will then be able to rebut it by showing that the reason was actually pretextual and that the employer’s real motive was discrimination. The employee might present evidence that rebuts the employer’s reason in order to demonstrate that it indicates discrimination.

The employee ultimately has the burden of proving his or her own discrimination claim. The worker must have enough evidence to convince a jury or judge that discrimination occurred. The employer only has the burden of proving that there is some evidence supporting a legitimate purpose.

Contact an experienced employment law attorney

If you feel that your employer illegally discriminated against you, getting legal help from an experienced employment law attorney might be beneficial. An attorney at Swartz Swidler can offer you an honest assessment of your claim and how you might proceed. Contact Swartz Swidler today to schedule your consultation.

5 Things You Need To Know About Employment Class Action Lawsuits

5 Things You Need To Know About Employment Class Action Lawsuits

Employment class actions involve massive cases that sometimes involve damages that range into the millions of dollars for violating employers. A class action results when multiple employees endure the same workplace discrimination or other employment law violation and join together in a single large case against the employer. Class action lawsuits can help the victims to receive justice while also deterring future violations by the employer as well as others.

What is an employment class action lawsuit?

An employment class action lawsuit is a single lawsuit on behalf of numerous plaintiffs who have identical claims against a single employer. Damages are sought in a single action for the entire group instead of for individual employees in separate lawsuits. For example, if your employer is refusing to pay you overtime, it is likely that other workers are also owed overtime, potentially giving the grounds for a court to certify a class action case.

Requirements for class action lawsuit

In order to file a class action lawsuit, it is important for you to understand what constitutes a class action lawsuit. The legal claim must be one that isn’t unique to one individual but instead negatively impacts an entire group of individuals. The number of individuals that have the grounds to file lawsuits is so great that it would be impractical to fill up a courthouse with multiple identical cases against the same employer. When these factors arise, your lawyer at Swartz Swidler may file a motion with the court asking that your case is certified as a class action lawsuit.

How many people are needed for a class action lawsuit?

Technically, there is no minimum number of people required to qualify for a class action lawsuit. However, getting fewer than 40 people certified to participate may make the process an uphill battle. Although smaller class action lawsuits are sometimes approved, they are rarer than large classes involving hundreds or thousands of employees.

How is an employment class action different than an individual employment case?

An individual employment case deals with the legal claims of a single employee. An employment class action becomes relevant when large groups are all facing the same difficulties.

What are the requirements of an employment class action lawsuit?

First, the disputed issue isn’t one that negatively impacts just one individual or a few people but instead impacts an entire group of individuals. Second, the number of individuals negatively impacted are so great, it would be impractical to try all of the cases separately.

What are the various stages of a class action case?

After the case is filed, the lawyer will then have it served on the defendant and will wait for a response. The defendant will file a response and may also file a motion asking the court to dismiss the lawsuit. After the court makes the decision about whether or not the case will be allowed to proceed, both sides will enter into the discovery phase. The attorney may then file a motion with the court asking that it certifies the case as a class action lawsuit. The defendant will then have the opportunity to respond by filing opposing briefs challenging the validity of the case. The judge weighs all evidence presented and renders a judgment on whether this certification will be granted or denied. If granted, the case will continue with a class-action status.

The employment class action lawyers at Swartz Swidler are highly trained to handle class action lawsuits. If you are in the New Jersey or Pennsylvania area and feel you have a potential class action suit, please call Swartz Swidler today and schedule an appointment. We may be able to help you.

What Age Discrimination Damages Can I Collect?

What Age Discrimination Damages Can I Collect?

If you are successful with your age discrimination claim, the amount of compensation you might expect to receive will depend on the losses that you have incurred as a result of the discrimination. Your available damages may include your lost pay, attorney’s fees, liquidated damages and emotional distress. If you sue under state law in New Jersey, you may also be able to recover punitive damages, but they are not allowed under federal law. Your age discrimination lawyer at Swartz Swidler may advise you on the types of damages that might be available to you in your particular case.

Age discrimination laws

Age discrimination is prohibited federally as well as under the anti-discrimination laws of New Jersey and Pennsylvania. The availability of damages differs depending on whether you sue under the federal Age Discrimination in Employment Act, the New Jersey Law Against Discrimination or the Pennsylvania Human Relations Act.

Age Discrimination in Employment Act

Under the Age Discrimination in Employment Act, employers that have 20 or more employees are prohibited from discriminating against workers who are 40 years old or older. Covered employees are not allowed to discriminate in any aspect of employment from hiring to firing. Some workplace policies that do not overtly appear discriminatory may be deemed to constitute age discrimination if they have a disparate impact on older employees.

New Jersey and Pennsylvania age discrimination laws

New Jersey and Pennsylvania each have their own state laws that prohibit work-related age discrimination. New Jersey’s Law Against Discrimination allows employees to recover punitive damages to punish their employers. It also applies to workers of all ages, meaning it is possible for people who are under age 40 but who are discriminated against because of their ages to file claims. Like the federal law, the Pennsylvania Human Relations Act covers workers who are 40 or older, however.

Potential damages

There are several types of damages that may be available to workers who are successful in their age discrimination claims, but they differ depending on whether you sue under state or federal law. Under both federal and state law in Pennsylvania and New Jersey, you are able to recover the pay that you lost because of the age discrimination against you. If you are able to prove that you were laid off because of your age, you will be able to recover back pay up until your trial as well as the front pay that you will continue to lose. You may also be able to recover the value of any fringe benefits that you lost or any that you would have received if you had not been discriminated against.

You cannot recover damages for emotional distress under the ADEA, but damages for emotional pain and suffering are recoverable under the state anti-discrimination laws of New Jersey and Pennsylvania. To prove that you suffered emotional distress, you may need to have an expert evaluate you and then testify about your injuries at trial. It will be up to the jury to determine what amount to award you for the emotional distress that you suffered.

Punitive damages are not available under the ADEA or in Pennsylvania, but they may be available to you if you sue in New Jersey under the Law Against Discrimination. Your attorney at Swartz Swidler may advise you about the most appropriate jurisdiction for your claim. You may also be able to recover your attorney’s fees under federal and state law. To learn more about your rights and the damages that may be available to you, schedule an appointment with the experienced employment lawyers at Swartz Swidler.

Does the ADA Cover Psychiatric Disabilities?

Does the ADA Cover Psychiatric Disabilities-

According to the National Institute of Mental Health, as many as one-fifth of people in the U.S. will suffer from a psychiatric disability at some point during their lives. The prevalence of mental health issues means that it is important for employers to address the needs of workers who are suffering from mental health issues. The Americans with Disabilities Act and the laws of both New Jersey and Pennsylvania forbid discriminating against people who are disabled, including those who are disabled by psychiatric conditions. Employers may also be required to provide reasonable accommodations to employees who are suffering from mental illnesses. Employees who have these conditions may also not be treated differently because of their illnesses. If you believe that you have been discriminated against because of your condition, the experienced employment law attorneys at Swartz Swidler may be able to help.

Who is covered under the ADA?

Job applicants and workers must be otherwise qualified for the position in order to qualify for protection under the ADA. This means that the workers or applicants must have the education, experience and skills that are required for the job as well as the ability to perform its essential functions. People who are disabled to such a degree that they could not perform the essential functions even with reasonable accommodations are not qualified, and the employer may then refuse to hire or decide to terminate them.

Workers who are suffering from psychiatric conditions that substantially limit them in their ability to perform major life activities may qualify as having a disability that is protected by the ADA. The following situations may all qualify:

  • A record exists of the disabling condition.
  • The employer believes that an employee has a mental condition even if he or she does not.
  • The employee doesn’t have a condition but is discriminated against based on his or her relationship with someone who does.
  • An employee with a psychiatric condition requests reasonable accommodations and is retaliated against by the employer.

A condition may be substantially limiting if it makes activities more time-consuming, uncomfortable or more difficult. Intermittent symptoms do not disqualify the condition. The key issue is how the symptoms limit the worker when they are present.

Reasonable accommodations

Disabled workers may be entitled to receive reasonable accommodations if they are needed to help him or her to perform a task that is required by the job. These might include the following:

  • Schedule changes or reassignments
  • Allowing people to take medicine at work
  • Changes to communication or management styles
  • Relocating employees to less distracting areas

The employer’s duty to provide reasonable accommodations is triggered when the employer first learns about the condition and the employee’s need for accommodations. Normally, disabled employees must notify their employers about their conditions and request accommodations. In practice, many disabled employees don’t ask for accommodations or disclose their conditions out of fear of losing their jobs or their privacy. Employers should keep the information separate from the disabled employee’s personnel file and keep the information on a need-to-know basis. When employees fail to ask for accommodations, employers generally have no obligation to offer them. It is thus important for you to ask for accommodations if you feel that you need them.

Employers must provide reasonable accommodations to workers who are suffering from disabilities unless the accommodations would result in an undue hardship. An undue hardship is one that would cause a substantial expense or another difficulty, and determining whether or not a requested accommodation is unreasonable should be made on a case-by-case basis.

The ADA prohibits workplace discrimination against people who are suffering from psychiatric conditions in all aspects of employment. Employers are not allowed to treat people unfavorably simply because they are suffering from a mental health condition.

Contact Our Attorneys

If you have a mental health condition that is disabling, you may be protected under the ADA as well as the state laws of New Jersey and Pennsylvania. Whether or not your disability qualifies will depend on what happened and how your condition limits you. To learn more about the rights that you might have if you believe that you have been discriminated against, contact the attorneys at Swartz Swidler.

How Old Is Legally Old? Workplace Age Discrimination Guide

How Old Is Legally Old- Workplace Age Discrimination Guide

Employers may not discriminate against employees or applicants on the basis of age, including in decisions about hiring, promotions, termination, layoffs or discipline. However, this prohibition only applies to workers who are ages 40 or older. The federal Age Discrimination in Employment Act of 1967 likewise only applies to employers who have 20 or more employees.

Under the New Jersey Law Against Discrimination, employers of any size are prohibited from discriminating against employees on the basis of age, and there is no minimum age threshold. In practice, however, people are likelier to be successful with age discrimination claims under the act if they are older workers who are replaced by workers who are substantially younger than them. If you need help, contact an attorney with Swartz Swidler to learn more about your claim.

Protections under the ADEA against age discrimination in the workplace

The protections under the ADEA apply to apprenticeship programs. They are not allowed to restrict applicants who are older than age 39 from participating in them. Age may only be used if it is a bona fide qualification for the job. Age discrimination is also prohibited in job advertisements. For example, employers may not list age preferences or limitations as job qualifications. If an employer asks for an applicant’s age before the applicant is hired, it may be viewed as evidence of age discrimination. Older workers must also be offered the same types of benefits as younger workers. However, since some benefits cost more for older workers, employers may reduce the benefits to an amount that is the same as the cost of the benefits for younger workers. Employers may offer departing workers additional severance pay in exchange for an agreement to not bring a legal claim against the company. These waivers must comply with certain legal requirements or they will not be considered valid.

The waivers must be in writing, be understandable, refer to ADEA rights specifically, not attempt to waive future claims and be made in exchange for valuable consideration. The worker must also be given at least 21 days to consider the waiver and at least seven days to revoke it after it has been signed.

To learn more about your rights under state and federal law concerning age discrimination in the workplace, it is important for you to seek the advice of experienced employment law attorneys. Contact the lawyers at Swartz Swidler to schedule your consultation today and to learn more about your own case.

Get The Facts About Sexual Harassment

Get The Facts About Sexual Harassment

Sexual harassment is an ongoing problem for both men and women in New Jersey and Pennsylvania. It is recognized as a form of sex discrimination under the Title VII of the federal Civil Rights Act of 1964, the New Jersey Law Against Discrimination and the Pennsylvania Human Relations Act. Across the U.S., sexually harassing people at work, in housing decisions or in educational institutions is against the law. If you have been sexually harassed, an attorney at Swartz Swidler may be able to help you.

Facts about sexual harassment and statistics about sexual harassment and assaults

Sexual harassment may include a variety of unwanted behaviors. Here are some facts about sexual harassment and what it may include:

  • Catcalls and wolf whistles
  • Leering
  • Sexual inuendos
  • Unwanted touching of a sexual nature
  • Pressure for dates or sexual favors
  • Graphic descriptions of pornography
  • Lewd, threatening letters, texts or emails
  • Grabbing genitals or breasts
  • Displaying porn in the workplace
  • Indecent exposures
  • Sexual assaults

The most severe form of sexual harassment, a sexual assault is especially troubling. A common misconception about sexual harassment and assault is that only women are victims. While statistics about sexual harassment demonstrate that nine out of 10 victims of sexual assaults are women, 2.78 million men have been the victims of rape or sexual assaults in their lifetimes as well. Only 39 percent of sexual assaults are reported to police, and of those, only 16.3 percent of the rapists will spend any time in prison. When civil lawsuits are filed, the burdens of proof are lower than what is required of the prosecutors to prove in corollary criminal cases, meaning that sexual harassment civil lawsuits may provide recourse even when remedies may not be had in any corresponding criminal cases against the perpetrators.

Sexual harassment in the workplace

When a person is sexually harassed while working on the job, the act is prohibited under federal and state law. Common forms of prohibited workplace sexual harassment include the following:

  • Direct, unwanted sexual advantages
  • Offering promotions based on sexual favors
  • Threatening negative job actions unless the victim performs sexually
  • Sexual joking, remarks and putdowns to the point that the workplace is a hostile environment
  • Intimidating employees based on their sex, sexual orientation or sexual identity in order to jeopardize their employment statuses

The National Council for Research on Women reports that women have a nine times higher likelihood of quitting their jobs because of sexual harassment and are three more times likelier to lose their jobs because of it. Women are especially likely to encounter workplace sexual harassment when they are employed in traditionally male occupations, such as the military, police work or construction. Sexual harassment victims are able to file claims even if he or she has given into the sexual demands because he or she is afraid of being fired or of retaliation.

Employer liability

In Pennsylvania and in New Jersey, employers are responsible for taking steps to prevent sexual harassment and correcting it if it occurs. They also must protect their workers from harassment by certain third parties such as customers, suppliers and vendors. If an employer knows that sexual harassment is occurring between coworkers and took no action to stop it, they may be liable to the victim. In addition to having a sexual harassment grievance procedure in place, an employer has a duty to investigate complaints and stop the harassment when they learn it is happening.

All employees should receive copies of a company’s sexual harassment policy. It should provide clear steps for reporting and encourage witnesses and victims to speak up. It should also clearly state that retaliation for reporting sexual harassment will not be tolerated.

Stopping sexual harassment

The first step that a victim of workplace sexual harassment should take is to confront the harasser and tell them it is inappropriate and unwanted. In some cases, a person may not realize that his or her conduct is inappropriate, and speaking up may be enough. If that does not work, the victim should next file a formal internal complaint according to his or her company’s grievance procedure. If there is no such policy in place, he or she should report the conduct to his or her manager in writing. If the manager is the offender, then the victim should report the conduct to the manager’s boss.

Documenting harassment

It is very important to thoroughly document all incidents of harassment, including the dates, times, what occurred and the names of witnesses and the perpetrator. If a harasser sends text messages, letters or emails, copies should be kept for use as evidence if a complaint or charge may later be filed. People should also keep copies of their written internal complaints as well as any corrective action or retaliatory action their employers may take in response.

Legal remedies

If your company’s internal complaint procedure results in no action, it is important for you to consult with an experienced employment lawyer at the law firm of Swartz Swidler. Attorneys may help you with filing your charge with the Equal Employment Opportunity Commission, the Pennsylvania Human Rights Commission or the New Jersey Division on Civil Rights. You must file a discrimination charge with your federal or state agency before you can file a formal lawsuit in court. It is important for you to act quickly because you may have as little as 180 days to file a charge after the harassment or retaliation has occurred.

When you file a charge with the EEOC or the corresponding state agency, it will investigate your claim. If the agency decides to pursue it, it may then pursue remedies on your behalf such as trying to settle the claim for you with your employer. The agency may also issue you a right-to-sue letter if it chooses not to take your case, allowing you to file a lawsuit in state or federal court against your employer. If the agency’s investigation instead finds that you have not been harassed, you are allowed to appeal the finding. The investigation by the EEOC may take more than a year. You are allowed to skip it by requesting that it issues you a right-to-sue letter, but you must file a charge of discrimination with the agency before you can proceed with your lawsuit.

Civil and criminal remedies

Civil sexual harassment cases may offer a variety of damages, including the following:

  • Reinstatement
  • Lost wages and benefits
  • Future lost earnings if the victim does not choose reinstatement
  • Attorney’s fees and court costs
  • Injunctive relief
  • Compensatory and punitive damages

Civil cases against the harasser and the company may proceed at the same time as any criminal actions when the conduct crossed the line into criminality. Since the burden of proof is easier to meet in civil cases than in criminal ones, you may be likelier to hold the abuser accountable in civil cases than in criminal proceedings even if he or she has his or her criminal case dismissed or is found not guilty after a trial.

Sexual harassment in educational settings

Sexual harassment is also prohibited at schools under Title IX of the 1972 Education Act. It applies to colleges, universities and schools that receive any federal funding and allows the U.S. Department of Education to investigate and prosecute complaints. Under the act, people in positions of authority, including teachers, administrators and others, are prohibited from sexually harassing students.

What to do if you are harassed at school

If you are harassed at school, report it to the principal or the vice-principal, if possible. Students in universities should review their student handbooks and follow the grievance procedures provided by them. If it does not help, you should report the sexual harassment to the U.S. Department of Education’s Office of Civil Rights. An attorney may help you with filing your complaint. Criminal conduct should also be reported to the police.

If you have experienced sexual harassment at your job or at your school, it is possible for you to seek remedies. An attorney at Swartz Swidler may review what has happened and advise you about whether you have a strong case. Contact our office today to schedule a consultation.