Workplace sexual harassment is an insidious issue within companies across New Jersey and persists despite federal and state laws that make it illegal. Sexual harassment can take several forms in the workplace and can sometimes be subtle and difficult for victims to identify. Even when workers recognize what’s happening, some hesitate to confront the issue because of a fear of retaliation and job loss. It’s important to understand what constitutes sexual harassment and how to fight back when it occurs at work. People should feel safe at work and should not be harassed based on their sex. At Swartz Swidler, a sexual harassment lawyer can analyze your case and help you pursue your legal rights to end harassing behavior in the workplace.
What Is Sexual Harassment?
Sexual harassment includes unwanted sexual advances, sexual requests, obscene jokes, unwelcome touching, and other similarly unwelcome, non-consensual, and offensive conduct in the workplace based on the victim’s sex. The perpetrator of sexual harassment can be male or female, and the victim can be the same or opposite gender as the harasser. The following examples might amount to illegal workplace sexual harassment:
- Leering or staring at someone
- Intentionally brushing up against someone or touching them
- Repeatedly asking someone out despite being turned down
- Asking for sexual favors in exchange for a raise
- Telling the victim suggestive jokes
- Insulting someone based on their gender
- Sending unwanted, sexually explicit text messages or emails
- Displaying or showing pornography to the victim
- Asking intrusive questions about the victim’s sex life
Workplace sexual harassment can take two main forms, including quid pro quo or hostile work environment sexual harassment.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment is direct and occurs when a person in a position of authority over the victim asks for sexual favors in exchange for work benefits or in lieu of work punishments. For example, if your boss tells you that you will need to perform a sex act to get a promotion, that would constitute quid pro quo sexual harassment. Conversely, this type of harassment also occurs when someone is threatened with an adverse job action if they refuse to give in to a supervisor’s advances. An example of this might occur if your boss tells you that you will be demoted unless you agree to engage in a sex act. You can pursue a quid pro quo harassment claim even if you participated in the requested sexual conduct. Others can also file quid pro quo sexual harassment claims when a coworker has been granted benefits in exchange for performing sexual favors to the detriment of other employees.
Hostile Work Environment Sexual Harassment
Sexual harassment in the workplace typically occurs as hostile work environment harassment. In this form, the harassment is either severe or pervasive enough that it makes the work environment feel hostile and untenable. One instance of poor conduct might not be enough to support a hostile work environment sexual harassment claim unless the incident was severe. For example, if a coworker told you a sexually suggestive joke one time, that would be unlikely to be enough to support a claim. The incidents of sexual harassment must be cumulative and pervasive enough that a reasonable person would find the environment to be hostile enough to interfere with their ability to perform their job duties.
In rare cases, a single incident can be enough to support a sexual harassment hostile work environment claim. This only occurs when the conduct is especially egregious enough to create a hostile environment. An example of a severe incident that could lead to a viable sexual harassment hostile work environment claim might be if a coworker pulled you into a corner and sexually assaulted you at work.
What to Do
If you believe you have been the victim of sexual harassment in the workplace, you should file a complaint with human resources or the designated person who handles complaints. If the person who typically receives complaints is the same person who harassed you, step outside of the chain of command and go one step above them. File your complaint in writing, and retain a copy for your records. If the incident involved sexual assault, report what happened to the police.
Your company should immediately investigate your complaint and take proactive steps to end the harassment. If your company fails to do anything about what happened or retaliates against you, you should talk to an NJ employment lawyer at Swartz Swidler. Both the New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964 forbid sexual harassment and retaliation. Employers are not allowed to retaliate against employees for complaining about sexual harassment in the workplace even if their complaints are not found to be valid.
Filing a Sexual Harassment Claim
If your employer failed to do anything to end the harassment or retaliated against you, you can pursue a sexual harassment charge against your employer with the New Jersey Division on Civil Rights or the Equal Employment Opportunity Commission. The NJDCR handles claims under state law, and the EEOC handles federal sexual harassment claims. You will need to act quickly because the deadline for filing a sexual harassment charge is 180 days or 300 days, depending on whether you file your claim with the DCR or the EEOC. Alternatively, you are allowed to file a lawsuit against your employer directly in the New Jersey Superior Court.
Do You Have to Arbitrate a Sexual Harassment Claim?
Many employers include mandatory arbitration clauses in their employment agreements. However, President Joseph R. Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 on March 3, 2022. With the passage of this law, the Federal Arbitration Act (FAA) no longer preempts the NJLAD’s anti-arbitration provisions for sexual harassment cases. This means you do not have to go to arbitration and can file a lawsuit directly in court.
Contact a Sexual Harassment Lawyer
No one should have to worry about being sexually harassed at work. If you have been the victim of this type of conduct, you should talk to the attorneys at Swartz Swidler. We can review your case, explain your legal rights, and guide you through the claim process. Call us for a confidential, free case evaluation at (856) 685-7420.