Workplace harassment based on a protected category, such as sex, race, or religion, violates New Jersey employment laws. Under current state law, the legal standards for asserting harassment claims are mostly based on caselaw rather than statutes. A bill pending in the New Jersey Legislature, A2443, would amend the New Jersey Law Against Discrimination (NJLAD) to add a definition of workplace harassment and the legal standard for making a claim. The bill would codify much of the New Jersey Supreme Court’s hostile work environment standard and disavow several court rulings on harassment claims under the NJLAD. It would also set new requirements for employers, including harassment policies and staff training.
The pending bill primarily addresses hostile work environment claims. It includes legislative findings that cite three New Jersey Supreme Court decisions from 1993, 1998, and 2007. These decisions established a test for proving a hostile work environment claim:
– The conduct was based on a protected category.
– It was “severe or pervasive.”
– A reasonable person who belongs to the affected category would believe that the workplace is hostile enough to alter the conditions of employment.
The bill also cites Justice Ginsburg’s concurring opinion in the U.S. Supreme Court’s 1993 decision in Harris v. Forklift Systems. She stated that a plaintiff does not need to prove that the harassment negatively impacted their work performance. They only need to show that it became “more difficult to do the job” because of the harassment.
The bill also disapprovingly cites three decisions that limit the “severe or pervasive” standard. In 2008, the New Jersey Supreme Court held that harassment claims should be “described in sterile terms, stripped of the overlay of [the plaintiff’s] subjective reactions.” It further held that the alleged conduct “was one of the socially uncomfortable situations that many women encounter in the course of their lives.” In a 2011 decision, the Third Circuit Court of Appeals affirmed a lower court decision holding that repeated unwelcome romantic calls, texts, and emails by a supervisor did not create a hostile work environment. The Third Circuit ruled in 2013 that intentional groping by a supervisor did not meet the “severe or pervasive” standard.
A2443 would add a new section to the NJLAD that includes harassment as a form of unlawful discrimination and an unlawful employment practice. It directs courts to consider the “totality of the circumstances,” looking at “the cumulative effect of all incidents of harassing conduct” instead of “individual incidents in isolation.” It also states that single incidents can meet the “severe or pervasive” standard. Courts should consider how “a reasonable person in [a] complainant’s protected class” would view the alleged conduct, while also considering the “complainant’s subjective responses to the harassing conduct.”
Other features of the bill include the following provisions:
– Employers would be required to adopt workplace harassment policies and provide training for their employees.
– Employers with 50 or more employees would be required to make annual reports to the state government with the number of harassment complaints filed, the numbers found to be substantiated or unsubstantiated, and the number still pending.
– Domestic workers would be able to bring harassment claims under the NJLAD.
Employers that harm their employees by violating state or federal law are liable for damages. If your employer has engaged in unlawful practices, a knowledgeable and experienced employment attorney can guide you through the legal process and advocate for your rights. The Resnick Law Group handles employment claims for workers in New Jersey and New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to discuss your case.