NJ Bill Would Make It Easier to Prove Hostile Workplace Sexual Harassment

A bill pending in the New Jersey Legislature is aimed at lowering the standard for proving hostile workplace sexual harassment under the New Jersey Law Against Discrimination (NJLAD).

If passed, Assembly Bill 2443 would codify the definition of hostile workplace sexual harassment as conduct that occurred because of a person’s sex and which a reasonable person of the same sex would find sufficiently “severe or pervasive” so as to negatively alter the conditions of employment. 

This definition would clarify that whether harassing conduct is severe or pervasive enough should be based on the totality of the circumstances.

Notably, the bill states that a single incident of harassment could be considered sufficient to create an intimidating, hostile or offensive work environment. This provision departs from previous interpretations of the NJLAD that required a pattern of pervasive conduct to establish a hostile workplace claim.

The bill specifically disavows the decisions in Clayton v. City of Atlantic City, a 2013 Third Circuit case that held an incident in which a supervisor intentionally grabbed an employee’s buttocks did not rise to the level of severe or pervasive conduct, and Godfrey v. Princeton Theological Seminary, a 2018 New Jersey Supreme Court case that held harassing conduct not directed at or witnessed by plaintiff cannot factor into the analysis of a hostile work environment claim.

1. 2443 also makes clear that there is no requirement for physical contact in such harassment claims. Offensive language, gestures or threats, whether sexual in nature or otherwise, may be enough to support a claim for unlawful harassment under the proposed law.

In addition, the bill emphasizes that the determination of whether conduct is severe or pervasive should be made from the perspective of a reasonable person in the complainant’s protected class. This means that the experiences and sensitivities of individuals from different backgrounds would be taken into account when assessing harassment claims.

If the bill is passed, New Jersey would join several other states, including California, Maryland, New York, and Colorado, that have amended their anti-discrimination laws to adopt more employee-friendly definitions of hostile workplace sexual harassment. These changes would make it easier for employees in New Jersey to bring and win such claims, leading to increased accountability for employers to police their workplaces.

Deutsch Atkins & Kleinfeldt, P.C. in Hackensack represents New Jersey workers in a full range of employment law matters, including sexual harassment claims. Please call 551-245-8894 or contact us online to schedule a meeting with one of our attorneys.