What Is a Hostile Work Environment?

Employers have a duty to protect New Jersey workers from an unsafe work environment.

New Jersey employers have a duty under the law to provide safe working conditions for their employees. In addition to ensuring their workplaces are free from physical danger, employers must comply with the provisions of the New Jersey Law Against Discrimination (NJLAD). This law requires employers to protect their workers from behavior that a reasonable person would find intimidating or abusive.

What is NJLAD?

New Jersey’s Law Against Discrimination protects employees from discrimination and harassment based on protected characteristics. Included under this provision is very broad protection against sexual harassment. One type of sexual harassment occurs when a worker is subjected to a hostile work environment.

Hostile work environment sexual harassment occurs when an employee endures unwelcome or offensive conduct based on their gender, sexuality, or sexual orientation. This includes sexually abusive conduct as well as offensive conduct that has sexual overtones or connotations.

• Although physical conduct can constitute hostile work environment sexual harassment, it is not necessary to support this type of sexual harassment claim.
• Conduct does not need to be sexually explicit in nature to constitute sexual harassment. For instance, continued derogatory remarks made against members of a certain gender or sexual orientation can be enough to create a hostile work environment under the law.
• A worker does not need to be directly targeted to claim hostile work environment harassment. For example, a woman who works in an environment where supervisors and coworkers consistently make derogatory remarks about women, put up explicit posters, and watch obscene videos may be able to bring a claim, even if no comments or behavior was specifically directed at her.

What Is the Legal Standard for a Hostile Work Environment?

To prove a hostile work environment claim under the NJLAD, a claimant must establish that

1. The complained-of conduct would not have occurred but for the employee’s protected characteristic or membership in one of the law’s protected classes.
2. The conduct was severe or pervasive enough that it would make a reasonable person in that protected group believe that it altered the conditions of employment, making the working environment abusive.

Unfortunately, neither New Jersey law nor the courts can exactly define what kind of conduct creates an “abusive working environment.” New Jersey’s highest court has “acknowledge[d] that the hostile work environment claim is still evolving. Conduct considered normal and non-discriminatory twenty years ago may well be considered discriminatory today.”

How Does a Jury Decide What Is Illegal Offensive Conduct?

If what is offensive and discriminatory is always changing, how does a jury decide whether the complained-of conduct is enough to create an illegal hostile work environment? The standard that the jury will be instructed to apply is that of a reasonable New Jersey employee who is similarly situated as the person making the claim. The law asks each jury member to put themselves in the shoes of the plaintiff, and decide

• Has the plaintiff established that the conduct occurred?
• Has the plaintiff established that the conduct related to a protected class under the NJLAD (sexuality, gender, etc.)?
• Would you reasonably believe, in the plaintiff’s shoes, that the conduct was severe and pervasive enough to make the workplace abusive?

Jurors must use their best judgment as to what a reasonable New Jersey worker (not a person who is extra-sensitive or extra-tolerant) would believe.

Examples of Hostile Work Environments

Usually, a plaintiff proves a hostile work environment by showing multiple acts of harassment, degradation, or threats, often perpetrated by more than one person. Examples include

• Unsolicited massages, “brushing up” against someone, kissing, or other unwanted sexual touching
• Repeated solicitations to go out on a date or perform sexual acts
• Jokes and derogatory remarks based on gender, sexuality, or sexual identity
• Exposing genitals or making obscene gestures of a sexual nature
• Displaying pornographic or obscene materials or media

Sometimes a hostile work environment claim can be based on just one extremely severe action. For example, an employee may have such a claim if their manager makes a credible threat to kill them or their family because of their sexual orientation or if a worker is sexually assaulted by a coworker, and their complaint is disregarded while the coworker is promoted to supervise the worker.

An employee may be able to make a successful claim for a hostile work environment even if they are not the target of the abuse or threats. For example, another employee of the same sexual orientation who overheard the manager’s death threats may be able to convince a jury that they felt personally terrorized, even if the originally targeted employee did not.

Can I Sue My Employer for My Hostile Work Environment?

A company is directly liable for the improper conduct of a supervisor or manager towards the workers they supervise. This is called respondeat superior. The law considers the representatives of a company to embody the company itself, so the company is responsible for their actions in the workplace. If you are sexually harassed or assaulted by your supervisor or manager, you can likely sue your employer.

In some situations, an employer might also be liable for harassing conduct that happens between non-supervisory co-workers or that a worker experiences from clients. This can occur when an employer fails to take reasonable precautions to prevent harassment, especially if it knows that the conduct is occurring and fails to take action to stop it.

Employers have a duty to investigate claims of harassment in the workplace and prevent further harm. They must conduct a prompt, thorough, and fair investigation into an employee’s claims of unlawful harassment or discrimination and then take meaningful action to prevent it from recurring. If your employer knows or should know of the harassing or abusive conduct but has not responded, you may have a legal claim against your employer.

Recovering Damages for Hostile Work Environment Sexual Harassment

An employee who successfully proves a claim for hostile work environment sexual harassment may be able to recover various types of compensation. Types of available damages may include

• Medical expenses, including psychiatric care
• Lost wages (including back pay and loss of future income, sometimes called “front pay”)
• Other monetary damages for costs related to the claim
• Attorneys’ fees and costs
• Compensation for emotional distress
• Possible punitive damages

Although it is not necessary to show actual harm to bring a successful sexual harassment claim, the amount of harm the harassment has caused often determines the amount a plaintiff will recover in damages. Especially egregious conduct may justify punitive damages against a company. These high damage awards attempt to drive the message home that future similar behavior in the workplace will not be tolerated. They are allowed as a matter of public policy to discourage future bad behavior.

Have You Experienced Sexual Harassment in the Workplace?

New Jersey courts take claims of sexual harassment very seriously. Hostile work environments threaten the stability and vitality of workplaces throughout the state. Preventing this kind of harassment is simply one more way that New Jersey protects its workforce, which is the backbone of its economy and community.

If you’ve been subjected to a hostile work environment or other workplace sexual harassment, you must act before the statute of limitations expires. In most cases, this is two (2) years after the last harassing conduct occurred.[1] If you don’t file a lawsuit within this time, you may forfeit the right to recover. If you believe you have been the victim of workplace sexual harassment, it is important that you act quickly. An experienced employment attorney can assist you in evaluating your situation and pursuing the justice you deserve.