Category Archives: Sexual Harassment

Sexual Assault Laws: 4 Things Every Woman Needs To Know In 2018

Sexual Assault Laws: 4 Things Every Woman Needs To Know In 2018

Sexual assault laws are confusing to many victims, and they vary from state to state. Even in situations in which the victim has physical evidence to support the claim, many of these cases never are filed in criminal court. It is important to understand the sexual assault laws as well as the potential for obtaining legal remedies if you have been a victim. The attorneys at Swartz Swidler might be able to advise you about your rights. Here are four things that you should know about sexual assault laws.

1. Each state has its own statute of limitation.

Every state has a statute of limitations, which is the time period within which a lawsuit can be filed or a crime report can be made. In the case of a sexual assault, some states only allow victims a period of a few years to file criminal cases while others allow decades. If the victims were minors at the time of the offenses, the statutes of limitations differ. Newly discovered DNA evidence may also change the statute of limitations if the perpetrator was previously unknown.

2. Many sexual assault cases are never prosecuted.

According to the Rape, Abuse, and Incest National Network, fewer than half of all rapes are reported to law enforcement. Out of those that are reported, only 12 incidents will result in arrests. Among those who are arrested, just nine of the cases will be prosecuted, and only three of the perpetrators will serve more than one day in jail or prison.

In the criminal justice system, prosecutors must prove beyond a reasonable doubt that the accused committed the crime before the defendant can be found guilty. This burden of proof is much higher than the burden of proof that is required in civil cases. As a result, many prosecutors will not take cases that they have questions about whether they can win. Consequently, a greater number of sexual assault cases proceed through civil court instead of criminal court.

3. National hotlines are available to victims.

It can be very difficult to understand what to do after you have been the victim of a sexual assault. Whether you are wanting help to bring a criminal or civil case, there are many resources that are available to help you. Some of the available hotlines include the following:

4. The burden of proof is on the victim.

If your case is prosecuted in criminal court, you will go through an arduous process during which you will have to tell your story numerous times. The prosecutor has the burden of proof to prove that the defendant committed the crime. In some cases, physical evidence is not available to prove a definite link between the defendant and the crime. For example, some perpetrators force their victims to take showers and use condoms, washing away evidence that might otherwise have existed.

When physical evidence doesn’t exist, these cases often turn on the victims’ words versus those of her attackers. This can make the cases very difficult if the victims had any prior relationships with their attackers. When the victims are intoxicated, jurors will sometimes place blame on the victims even though the attacks were not their fault.

Get legal help

If you have been the victim of a sexual assault, you might need legal help. The attorneys at Swartz Swidler might be able to offer you guidance about reporting what happened to you. They may also be able to assist you with filing a civil lawsuit against the attacker for the harms that you have suffered whether or not your case is criminally prosecuted. Call us today or complete our contact form to learn more about the rights that you might have.

When Does Sexual Harassment at Work Become a Crime?

When Does Sexual Harassment at Work Become a Crime

Victims of workplace sexual harassment can be greatly impacted. They might have trouble performing the tasks of their jobs. They may also be prevented from getting promotions and might also lose their jobs. While workers are able to seek relief through the civil process for workplace sexual harassment, the civil laws do not make the conduct criminal.

In some cases, however, sexual harassment may cross the line into criminality. If the conduct that has been directed at you is also criminal in nature, it is important for you to recognize it and to understand what to do. The experienced lawyers at Swartz Swidler might help you with the civil process while also advising you about how to report the conduct to the authorities.

Understanding sexual harassment

Under Title VII of the Civil Rights Act of 1964, the New Jersey Law Against Discrimination and the Pennsylvania Human Relations Act, workplace sexual harassment is a prohibited form of sex discrimination. It consists of sexual conduct that is unwelcome and that is either used as a basis for making employment decisions or that creates a workplace environment that is hostile.

Sexual harassment may include physical and verbal actions such as repeated comments, requests for sexual acts, unwanted touching, unwanted advances and sexual acts. In some cases, prohibited sexual harassment may also be criminal.

When does sexual harassment rise to the level of a crime?

Some forms of sexual harassment are obviously criminal in nature such as a sexual assault at work. Others are not as clear such as verbal sexual harassment. The local criminal laws in your jurisdiction will control whether such conduct is also a crime. Here are several examples of state law that might make workplace sexual harassment criminal in nature.

Rape, unwanted touching and sexual abuse

Rape is illegal under the laws of Pennsylvania and New Jersey and includes penetration without consent. In addition, criminal sexual contact may include unwanted touching of a victim’s sex organs or forced touching of the perpetrator’s sex organs. The unwanted touching can be over clothing and still be criminal if it is done without consent.

  • Assault

In some cases, a person may be physically assaulted by a harasser. Even if the assault is not a sexual assault, the physical contact may be a crime. Examples of criminal assaults that might be done for purposes of intimidation may include such things as hitting, pushing or other physical contacts. If you are assaulted at work by your harasser, you may press criminal charges in addition to filing discrimination complaints. Your attorneys at Swartz Swidler can help to guide you through the process.

  • Menacing

Under the laws of New Jersey and Pennsylvania, menacing can constitute a simple assault. Menacing occurs when the harassers make physical threats against the victims in an effort to place them in imminent fear of injury or death through threats. Menacing is a crime in both states.

  • Stalking

Commonly, sexual harassers at work engage in a pattern of ongoing behavior. If the conduct is repeated, it may fall under the definition of stalking. The harassers may be guilty of criminal stalking when they engage in repeated acts that cause the victims to feel reasonably fearful for their own safety or that of others. An example of this type of conduct could include repeated phone calls or text messages from a coworker or supervisor or being repeatedly followed.

  • Unlawful imprisonment

If your movement at work is restricted by another person at your job, it might rise to the level of criminal unlawful imprisonment. Unlawful imprisonment occurs when your movement is restricted in such a way that your liberty is substantially limited. In the context of workplace sexual harassment, you may be unlawfully imprisoned if your supervisor or a co-worker demands sexual favors or makes unwelcome sexual advances in an office and prevents you from leaving.

What to do if you have been the victim of criminal conduct and sexual harassment

If you have been the victim of sexual harassment that rises to the level of a crime at your job, you should report what happened to the police. Law enforcement authorities can help you with filing your criminal complaint. You should also contact the employment lawyers at Swartz Swidler for advice about your corresponding civil claim. You may be able to receive redress through both the criminal and civil justice systems.

Contact Swartz Swidler today to learn more about how to handle your case.

When Does Flirting And Bantering Cross The Line?

When Does Flirting And Bantering Cross The Line

As stories of powerful people who have allegedly sexually harassed or assaulted women consume the news cycle, some people in New Jersey and Pennsylvania might wonder where to draw the line between harmless flirting and bantering at their workplaces and sexual harassment. In the workplace, sexual harassment is illegal under both state and federal law.

Some workers and employers are uncertain what constitutes illegal behavior and what is prohibited sexual harassment. If you believe that you have been the victim of sexual harassment at work, you might want to talk to the experienced employment lawyers at Swartz Swidler to learn about your potential rights.

Flirting and banter vs. sexual harassment

Many workplaces have long been marked by harmless flirting and inappropriate jokes. This type of conduct may cross the line into illegal conduct when it is unwelcome. However, it may be difficult to know when flirting or joking is unwelcome. Under the law, people who feel harassed by flirting or inappropriate jokes must speak up. In general, courts will not find that illegal sexual harassment has occurred unless there are multiple incidents that are ongoing despite documented complaints.

While most people might find crude jokes to be uncomfortable, they are generally not considered to be illegal sexual harassment when they are not directed toward individual people at work. If you feel uncomfortable about the banter that happens at your job or because of flirting, you should tell a supervisor about your discomfort.

Workplace sexual harassment policies

There are regulations in place that help employers to establish sexual harassment policies at their workplaces. If your workplace has become a hostile working environment to such an extent that it is difficult for you to be able to perform your job duties because of ongoing sexual harassment, you must follow your employer’s complaint procedures before you can file a discrimination charge with the Equal Employment Opportunity Commission. Your employer must have notice of the harassment and an opportunity to investigate your complaint. If your employer does not investigate your complaint or retaliates against you for complaining, you may have legal rights.

How Our Attorneys might help

If you have been the victim of workplace sexual harassment, an experienced employment lawyer may guide you through the steps of the internal complaint process at your job. Your complaint must be submitted in writing and follow the policies of your company. You should document all instances of harassment with the dates, times, what was said and who was present. If your employer fails to investigate your complaint or to take appropriate action, your attorney may assist you with filing a discrimination charge with the EEOC or the corresponding state agency.

Contact Swartz Swidler to learn more about your potential claim and to get help.

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.

Learn How To Protect Yourself From Sexual Harassment In The Workplace

Learn How To Protect Yourself From Sexual Harassment In The Workplace

If you are the victim of workplace sexual harassment, you are not alone. Despite that fact that sexual harassment in the workplace is prohibited by both state and federal law, it is still far too common. The employment lawyers at Swartz Swidler advocate for victims of sexual harassment, helping them to recover damages that they rightfully deserve.
 

What is sexual harassment?

Sexual harassment includes unwanted sexual overtures and conduct that makes the workplace environment hostile, offensive or intimidating. This can include any of the following:

  • Offensive, repetitive joking
  • Pornography
  • Workplace sexual exposures
  • Demanding sexual favors in exchange for not being fired or for a promotion
  • Offensive touching
  • Sexual assaults

While many sexual harassment victims are women, it is important to note that men may also be the victims of sexual harassment. Gay, straight and transgendered employees may all be targets, making sexual harassment an equal-opportunity discriminatory act.

What to do if you are experiencing workplace sexual harassment

There are several steps that you can take to protect yourself if you are being sexually harassed on the job.

1. Tell the person who is harassing you to stop

While it may be difficult for you to confront the harasser, it is an important step to take. This is a more successful approach for cases involving off-color jokes. It lets the harasser know that his or her behavior is unwelcome. Doing so is important as it establishes the basis for a claim of sexual harassment if you later need to file a complaint. If your harasser ignores your oral requests or if you are too uncomfortable to speak with him or her one-on-one, write a letter that details that you have requested or are requesting that the harasser cease the unwelcome behavior. This letter should identify what has been occurring, and it should clearly demand that the behavior stop. Save a copy of your letter.

2. Complain to your supervisor or human resources representative

Your company likely has a sexual harassment policy and procedure in place. You should follow the procedure as it is outlined, making certain that your complaint is in writing. If the harasser is the person to whom you are supposed to complain, file your complaint with his or her supervisor or with a human resources officer instead. If you workplace does not have a defined sexual harassment procedure, file a written complaint with your supervisor or with human resources anyway. If your initial complaint does not result in any correction, move up your company’s chain of command, documenting your efforts and the responses that you receive at every step of the way.

It is important that you do not skip the internal complaint process at your job. The U.S. Supreme Court has ruled that employees who do not make their employers aware of the sexual harassment that they are experiencing through a formal complaint promise may not hold the employers liable. Employers must be given notice and be allowed to take corrective measures, or you will not have sufficient legal grounds to file a complaint.

How to document your complaints

Documenting the steps you have taken as well as the harassment you have experienced is very important. Your attorneys at Swartz Swidler may later use your documentation as evidence to help prosecute your case against your employer if a lawsuit becomes necessary.

Begin by collecting as much information as is possible about the sexual harassment. This includes copying offensive emails, letters, cards, photographs or notes that you receive. If offensive jokes, cartoons or pin-ups harassed you, either confiscate them or make photocopies. Offensive and anonymous pictures and jokes posted on a company’s bulletin board are not the property of anyone else. This means that you can remove them and hold them as evidence. You should also take photographs of the walls showing the offensive material that is posted there. Make certain to detail when the material was posted and whether people reacted hostilely when you removed it.

Finally, keep a detailed diary about the harassment you are experiencing. This should list the date and time of each incident, the names of every person who was involved, what occurred and where it took place. You should also list the names of any people who witnessed the incident but who did not participate. You should also detail how the harassment has affected your health, your job performance and you. Keep your diary away from work in a safe place.

Make certain that you obtain copies of all of your performance evaluations and other personnel documents. It may be a good idea to ask for a copy of your complete personnel file before filing your complaint. This can be strong evidence if your employer later retaliates against you for complaining, which is also prohibited.

Complain to the EEOC and your state’s corresponding agency before filing a lawsuit

The law mandates that you complain to the EEOC and your state’s corresponding agency before you can file a lawsuit against your company for harassment. The agencies will investigate your complaint and attempt to negotiate a settlement for you if the find that your complaint has a valid basis. If you are unable to secure a favorable resolution through the federal or state investigation and settlement process, you may then get help from the employment law attorneys at Swartz Swidler with filing your civil lawsuit. This can help you to possibly recover damages that fairly compensate you.

Richard Swartz, best employment benefits attorney

Richard Swartz has been named one of the best employment benefits attorney

Richard Swartz, one of the partners at Swartz Swidler, LLC, has been named one of the South Jersey best employment benefits attorneys!
For more information, please visit: http://sjmagazine.net/e-issue/2016/08/#page/64

Richard Swartz is an experienced attorney in the field of litigation. Since his first case in 1998, he has been protecting the rights of his clients who have been discriminated against by their employers for any type of reason such as sex, gender, age, race, ethnic background or any type of medical condition. He has helped clients with disability problems or whom their employer failed to accommodate as well as women who have been fired for being pregnant or even sexually harassed. He represents and protects clients who have been discriminated for their sexual orientation at their workplace too.

His experience working in the labor and employment departments of Ballard Spahr, Pepper Hamilton, and Blank Rome and now as a partner of Swartz Swidler, LLC has led to the successful resolution of hundreds of cases and found relief for his clients. best employment attorneys

“Richard and his team are truly top notch. He took a discrimination case no one else would touch to the EEOC and guided us step-by-step to a positive outcome.”

“I was discriminated against. They fired me. Another law firm said no. This lawyer took my case and won. I would say go to him if you have a legal problem. Very good.”

“Always returned my phone calls (which I admit were frequent), never seemed rushed. Really helped me deal with a stressful situation”

“Richard has delivered one perfect work product after another. He thoroughly explores all options and keeps his clients well informed so they can make an educated decision. Richard is accessible and very quick about responding to messages and emails. I would highly recommend Richard Swartz.”

For more reviews of Richard Swartz, please visit:

https://www.avvo.com/attorneys/08034-nj-richard-swartz-570954/reviews.html

If you have any problems with your employer, please contact Richard Swartz. He can be reached at 856-283-3530 or at his email: rswartz@swartz-legal.com

Sexual Harassment and Discrimination in New Jersey

Sexual harassment is a specific type of workplace discrimination based on sex . It includes: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in which submission to or rejection of such conduct explicitly or implicitly affects and individual’s work or creates an intimidating, hostile, or offensive work environment.

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from sexual harassment, making illegal to discriminate against someone on the basis of sex, among others facts.

The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Most states have rules that protect individuals from sexual harassment too. For instance, The New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) (LAD) makes it unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. Whereas, the Rule 202 of the Pennsylvania code prohibits discrimination and harassment because of race, color, sex, sexual orientation, national origin, age, disability or religion.

Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

There are different types of sexual harassment recognized by the United States Supreme Court and the EEOC.  The two most common types of sexual harassment are:

  1. Quid pro quo– Quid pro quo sexual harassment occurs when a beneficial condition of employment is premised upon an employee’s submission to sexual advances. Frequently, that claim is also raised when an employee rejects a sexual advance, and claims a connection between that rejection and a subsequent adverse job action. That action might be a denial of a raise or promotion, a termination, or a “constructive discharge” where an employee claims that the retaliation made his or her job conditions intolerable. This type of harassment is less common.
  2. Hostile environment– When unwelcome, severe and persistent sexual conduct on the part of a perpetrator creates an uncomfortable and hostile environment (e.g., jokes, lewd postures, leering, inappropriate touching, rape, etc.). This type of harassment constitutes up to 95% of all sexual harassment cases. However, there is no clear definition of  “hostile environment workplace”. It can occur where jokes, suggestive remarks, physical interference with movement (such as blocking one’s path), pictures, cartoons, or sexually derogatory comments alter the circumstances of the workplace. Generally, repeated conduct is required to prove a hostile work environment, and a “stray comment” has been held not to alter the working conditions sufficiently to create a cause of action. However, some comments or conduct can be so severe that a single incident can create liability.

Research into sexual harassment provide that that there are a variety of circumstances involved in a case of sexual harassment:

  • Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
  • The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

The Equal Employment Opportuniy Commission, received 6,862 charges of workplace sexual harassment in 2014, a number that has been fairly stagnant over the past few years. 17.5% of it, are charges filed by males.

Statistics in sexual harassment since 2010

According to the United States Department of Justice, only approximately 30% of sexual assault cases are reported to authorities.   Though a significant number of Americans are victims of sexual harassment in the workplace, many don’t report it out of fear of retaliation, worries their co-workers will make them feel ashamed by the experience and other concerns.

Suffering harassment at the workplace not only affects the person’s ability to work but creates emotional distress and physical reactions. The most common ones are:

  • Poor concentration at work
  • Stress on personal relationships
  • Fear/anxiety
  • Debilitating depression
  • Sleep/weight problems
  • Alcohol or drug use
  • Staff turnover
  • Increased absenteeism
  • Tarnished company reputation
  • Increased payouts for sick leave and medical benefits
  • Vulnerability to hostile confrontations
  • Legal and consultant costs
  • Lower staff productivity
  • Poor staff morale
  • Less teamwork

Employers have the obligation to act if a sexual harassment incident occurs. An important component of harassment prevention is the creation and dissemination of a sexual harassment prohibition policy and reporting procedure. This policy is critical because under federal case law, an employer fulfills its obligation if it takes all reasonable steps to prevent harassment before it occurs, and to take effective steps to remedy harassment after it takes place. If an employer demonstrates those attempts at prevention and remediation, it might not be found liable for the act of harassment itself.

Elements of a proper sexual harassment policy are the following:

A policy statement. This is a document that prescribes acceptable methods or behaviors. It should set forth a broad definition of sexual harassment. It must ban all behavior that has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive work environment. It should make clear that submission to any type of that conduct cannot be made, explicitly or implicitly, a term or condition of employment, or used as a basis for any employment decisions. It must be a non-retaliation policy, meaning that the company must practice and protect complainants and witnesses from any retaliation from any source as a result of initiating or supporting a sexual harassment allegation. It is important that it designates several appropriate individuals authorized to receive the harassment complaint. This will prevent the situation in which the alleged harasser is the person to whom the complaint would logically be addressed.

Specific procedures for prevention. The policy should make sexual harassment a disciplinary offense, and reserve the right to terminate an employee found in that conduct. It is recommended to establish training programs in sexual harassment prevention,

Urge employees to raise and resolve their concerns at an early stage: The policy must actively encourage victims of sexual harassment to report the behavior.

Once a complaint is arisen, employers must establish a formal investigative process to find out more about the facts. This might include interviewing the complainant, the alleged harasser and any possible witnesses.  If the investigation finds that sexual harassment has occurred, some level of formal sanctions should be imposed. The range of sanctions could include a written reprimand, removal of management authority or duties, suspension, or termination; the proper remedy has to be determined on a case-by-case basis.

If you think you have been a victim of sexual harassment, the following actions may help, though you should contact one of our employment attorneys so that we can advise you further.  Depending on the specific situation, other action may be more prudent:

  • Say “no” clearly: Express verbally that behavior must stop.
  • Document the harassment: Keep a written log, keep track of dates, times, and behavior.
  • Look for co-workers that can act as witness of your situation at work.
  • Talk to the individuals authorized to receive the harassment complaint in your company. They can be your supervisor, the Human Resources manager, the director or even the president. They should know about your situation and take immediate action. It is highly recommend it to write them about the incident/incidents and keep a copy for your records.
  • Use e-mail to document your concerns where possible.
  • Call us to receive a free assessment on your case.

Employment Non Discrimination Act (“ENDA”) Passes the United States Senate

The country may be in store for a new federal civil rights act, this one protecting the rights of lesbian, gay, bisexual, and transgender employees from employment discrimination. Monday, U.S. Senate member voted to begin debate on the Employment nondiscrimination Act, also known as ENDA. A vote on whether or not to pass the law could happen as soon as later this week. If passed, the law would outlaw sexual orientation and gender identity discrimination nationwide, including in New Jersey and Pennsylvania.

Discrimination Lawsuit Charges Red Lobster Franchisee with Sexual Harassment

A Red Lobster Franchisee, GMRI, Inc., has been charged in a lawsuit alleging pervasive sexual harassment and discrimination at its Salisbury, MD location, in violation of federal law. The Philadelphia Equal Employment Opportunity Commission (“EEOC”) district office in Pennsylvania is bringing the claim.   The EEOC is a federal agency charged with handling employment discrimination and other employee rights matters involving federal discrimination laws.

The lawsuit has been filed as a class action, involving Valerie Serman, Rachael Cox, and a class of similarly situated female employees, who have endured discrimination in the form of longstanding sexual harassment at the hands of the restaurant’s culinary manager. The accusation against the manager include grabbing and groping of female employees, rubbing his groin against them, and making numerous vulgar remarks regarding the bodies of female employees and about his genitals.

The federal law in question is Title VII of the Civil Rights Act, an historic 1964 law that offered broad protections for then under protected classes of people, most notably African Americans. Title VII of this law regards discrimination in the work place, and protects employees and potential employees from discrimination on the basis of race, color, religion, sex, or national origin.

Title VII does not simply prohibit employment discrimination and harassment. Employees who feel they are being discriminated against by fellow employees must first take steps to resolve the issue through any means made available by the employer. This means complaining to upper management and the Human Resources department. Only if no action is taken by management can discrimination be alleged.

Such was the case with Serman, who states she complained to her general manager about the harassment. The general manager not only did nothing to remedy the discrimination, the EEOC also charges him with also making vulgar and sexually charged remarks about female employees. Accordingly, the EEOC attorney believes Red Lobster failed to take prompt action to stop the sexual harassment despite the blatant perversity of the comments.

In addition to Title VII, many states have local discrimination and harassment laws that individuals can utilize for lawsuits. In New Jersey there is the New Jersey Law Against Discrimination (“NJLAD”). This law provides slightly broader protections than Title VII. In addition to protecting against discrimination against race, color, religion, sex, and national origin, NJLAD also protects those who are discriminated against based on sexual orientation, gender identity or expression, or disability. State laws may only expand upon protections offered by Title VII’s federal minimums.

The EEOC filed a lawsuit for Serman and company in the U.S. District Court for the District of Maryland, Northern Division (EEOC v. GMRI, Inc., d/b/a Red  Lobster, Civil Action No. 1:13-cv-02860-MJG). Administrative actions through the Philadelphia EEOC, which often settle discrimination matters in Pennsylvania and surrounding areas, without the need for legal action, did not result in settlement, prompting attorneys representing the commission to file the complaint. Attorneys at the commission seek injunctive relief prohibiting the Red Lobster from engaging in sexual harassment and discrimination, as well as punitive and compensatory damages for Serman, Cox, and the class of female employees and other affirmative relief.

EEOC Regional attorney Debra M. Lawrence feels strongly about the need to hold employers responsible for their workplace environment, and channels her passion into her representation. “When companies tolerate sexual harassment, everyone loses,” she stated. “This lawsuit illustrates yet again that when employers abdicate their responsibility to maintain a workplace free from sexual harassment, then the EEOC will take action to protect employees from unrelenting harassment committed and condoned by management officials.”

Director of Philadelphia EEOC, Spencer H. Lewis, agrees with their attorney, saying “no employee should have to endure severe or pervasive sexual harassment in order to earn a living.” His office’s jurisdiction includes Maryland, Pennsylvania, Delware, and parts of New Jersey and Ohio.

Swartz Swidler, attorneys who represent clients in discrimination and other employment law matters, fight for individuals in similar state and federal lawsuits against employers who violate the rights of their employees.,  Swartz Swidler vigorously pursues matters on behalf of individuals who have been wrongfully terminated due to race, sex, age, and other legal protected factors.

New Jersey Supreme Court rules against Discrimination as New Jersey becomes 14th State to Legalize Same Sex Marriage

TRENTON, NEW JERSEY (NJ): On October 18, 2013, the Supreme Court of New Jersey (NJ) unanimously ruled to enforce the Mercer County Superior Court Judge’s decision declaring the state’s marriage law banning same-sex marriage to constitute unlawful discrimination and accordingly, unconstitutional. Judge Mary Jacobson of Mercer County Superior Court ruled on September 27, 2013 in favor of same-sex couples who challenged the law regarding civil unions, arguing the law restricted federal benefits given to heterosexual married couples. For example, under federal and New Jersey (NJ) employment laws, legally married couples may take leave to provide care to a spouse with a serious medical condition (under the Family Medical Leave Act, “FMLA”, and the New Jersey Family Leave Act, “NJ FLA”). However, couples not legally married are not entitled to such protections.