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When is an Employer Liable for Sexual Harassment by a Co-worker?

When is an Employer Liable for Sexual Harassment by a Co-worker?

Sexual harassment is a form of illegal discrimination that exists in public and private workplaces throughout the country. There are several different types and degrees of sexual harassment. Some employees use their authority, control or influence to coerce employees under them into accepting or tolerating sexual advances. However, harassment can also be peer-to-peer. One employee may make unwanted sexual or romantic advances to another. An employee may disparage members of one gender with comments or written or visual material. In some cases, the employer might be liable to the victim for the harassing employee’s actions. This is called vicarious liability.

In New Jersey, a hiring organization may be vicariously liable for sexual harassment committed by employees if any of the following are true:

  • The employer knew or should have known about the harassment and failed to take the necessary action to stop it.
  • The employer delegated some operational control of the work environment to the harassing employee.
  • The employer was negligent in preventing harassment by failing to implement adequate anti-harassment policies and training programs.

These are fact issues that are determined by the Division on Civil Rights (DCR) after an investigation or by a jury if the complaining employee files a lawsuit.

For many years in New Jersey, the third issue was the most difficult, as there was little guidance on what made an employer’s anti-harassment policies or training programs adequate enough for the employer not to be found negligent. However, this changed when the state Supreme Court issued its precedential ruling in Gaines v. Bellino. The court stated that company anti-harassment programs must be fully functional for the task of discouraging harassment within the organization. To avoid liability, the company must adopt formal policies and complaint procedures, train the employees, monitor the workplace and enforce policies and procedures fairly and consistently.

There are various legal remedies available in sexual harassment cases. The victim can claim direct financial damages such as lost wages and related costs. Depending on the severity of the conduct at issue, a victim may also be entitled to punitive damages and/or losses based on emotional distress.

Deutsch Atkins & Kleinfeldt, P.C. in Hackensack represents employees in discrimination cases throughout the greater New York/New Jersey metropolitan area. Our attorneys are highly knowledgeable and experienced in employee rights and fight hard to get mistreated workers the compensation they deserve. If you are a victim of harassment or other inappropriate conduct, contact us online or call 551-245-8894 for a consultation.

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Neil H. Deutsch

About Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for…

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Bruce L. Atkins
Senior Partner

About Bruce L. Atkins is regarded as one of New Jersey’s premier practitioners of employment and civil litigation. He has been selected to the New Jersey Super Lawyers prestigious list every year since 2005.  This honor, bestowed upon a recipient by the votes of his peers, is a powerful nod to the skill Mr. Atkins…

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Adam J. Kleinfeldt

About Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, P.C. in March of 2015.  He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters.  He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict…

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Diane Englander Peyser

About Diane Englander Peyser joined Deutsch Atkins & Kleinfeldt, P.C. in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins & Kleinfeldt, P.C., Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination,…

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Debra M. McGarvey

About Debra M. McGarvey joined Deutsch Atkins & Kleinfeldt, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA),…

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