Contact Schiller Law today for a free, confidential consultation.
Even though sexual harassment is unlawful, it still occurs on a daily basis. The effect that sexual harassment can have on a victim is sometimes profound. At Schiller Law, we seek to end sexual harassment practices, by holding the harassers and those who permitted the harassment accountable, and by recovering maximum compensation for our clients.
HOSTILE WORK ENVIRONMENT
Many victims of sexual harassment suffer through a hostile work environment. In order to establish a claim for sexual harassment under a hostile work environment theory, a plaintiff must allege conduct that occurred because of his/her sex and that which a reasonable man/woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment.
Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The “unlawful employment practice” therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts. A hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
Hostile work environment claims are often based on continuing violations, because in a hostile work environment an individual feels constantly threatened even in the absence of constant harassment. Once a pattern of harassment has created a psychologically offensive work environment, the status quo of such continuous wrongful conduct can be based on the harasser’s mere presence.
Sexual harassment claims are brought pursuant to the New Jersey Law Against Discrimination. These claims generally have a two-year statute of limitations. However, the continuing violation theory has developed as an equitable exception to the statute of limitations. The doctrine provides that when an individual experiences a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases. The premise underlying the doctrine is that the conduct becomes actionable because of its continuous, cumulative, synergistic nature.
When applied, the effect of the doctrine is amazingly broad. For statute of limitations purposes, the entire claim accrues only when the last act in the pattern of harassment occurs. Therefore, a single timely act sweeps in the entire pattern as timely, even if every other act in the pattern was otherwise untimely.
Retaliation
The Law Against Discrimination also provides for a cause of action based on retaliation. The LAD provides: It is unlawful for any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act. Protection against retaliation embodied in the Law Against Discrimination is broad and pervasive, and must be seen as necessarily designed to promote the integrity of underlying antidiscrimination policies by protecting against reprisals against any person who has sought to protect his or her own rights not to be discriminated against or who has acted in support of such conduct.
In order to successfully assert a retaliation claim under the New Jersey Law Against Discrimination, a plaintiff must demonstrate that he/she: (1) engaged in a protected activity; (2) suffered an adverse employment action; and (3) that there is a causal connection between his participation in the protected activity and the adverse employment action. If employee meets three-prong test, burden then shifts to employer, who must then articulate legitimate, nonretaliatory reason for decision, and employee can then respond and produce evidence of discriminatory motive of employer, and demonstrate that legitimate reason was merely pretext for underlying discriminatory motive.
Vicarious liability
An employer can be held liable for any emotional distress damages a plaintiff suffered under three theories: (1) failure to take remedial action; (2) delegation of authority; and (3) negligence.
Affirmative Defense
The Law Against Discrimination requires an unequivocal commitment from the top that the employer’s opposition to sexual harassment is not just words, but backed up by consistent practice. The New Jersey Supreme Court in Aguas v. State provided an affirmative defense to employers for sexual harassment claims. However, Aguas provides no protection to an employer whose sexual harassment policy fails to provide meaningful and effective policies and procedures for employees to use in response to harassment. An employer that implements an ineffective anti-harassment policy, or fails to enforce its policy, may not assert the affirmative defense.
Punitive Damages
Punitive Damages are meant to punish a wrongdoer for their conduct and to deter similar conduct in the future. In order to be awarded punitive damages, a plaintiff must show that the wrongdoer’s conduct was malicious or that the wrongdoer acted in willful or wanton disregard of the plaintiff’s rights. Punitive Damages are available under the Law Against Discrimination. However, a plaintiff must also show that the wrongdoer’s conduct was especially egregious and that at least one member of the employer’s upper management actually participated in, or was willfully indifferent to, the wrongful conduct.
If you are someone you know has been subjected to sexual harassment, contact Schiller Law today for a free, confidential consultation.