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.