Sexually Hostile Work Environment
Sometimes sexual discrimination in the workplace does not involve a concrete job action like a firing or a demotion. Rather, the discrimination takes the form of sexual harassment like unwelcome sexual advances, comments or touching, which causes a female (or male) employee to experience a sexually hostile environment. In cases where the harassment is particularly severe, or happens regularly and often enough to change the terms and conditions of employment, an employee may have a “sexually hostile work environment” claim.
However it’s not that simple. This is because under both state and federal law you can’t usually sue the actual person who is harassing you. Instead, you sue your employer for failing to protect you from the harassment. Ultimately, there are two ways you can hold your employer liable for sexual harassment by another employee.
The first way is to show that your employer was negligent in failing to either prevent or correct the harassment. An employer can be liable for failing to prevent the harassment if it does not have an effective anti-harassment policy. The New Jersey Supreme Court has identified five elements to an effective harassment policy. These are:
(1) formal written policies prohibiting racial harassment in the workplace;
(2) formal and informal complaint structures for employees to report racial harassment;
(3) anti-harassment training, which must be mandatory for supervisors and managers and available to all employees;
(4) effective sensing or monitoring mechanisms to check the trustworthiness of the written policies and complaint structures; and
(5) an unequivocal commitment from the highest levels of the employer that harassment will not be tolerated, and demonstration of that policy commitment by consistent practice.
If an employer does not have each of these five anti-Harassment measures in place, and you are sexually harassed, a jury may find the employer was negligent in failing to prevent the harassment and hold the employer liable.