Is It Sexual Harassment or Just Inappropriate Behavior? Where New Jersey Law Draws the Line

Navigating workplace relationships can be complicated and confusing, particularly if you start to experience unprofessional behavior or feel uncomfortable. While not every uncomfortable or inappropriate interaction is considered sexual harassment, certain behaviors that an employer or co-worker dismisses as a joke can cross the line into unlawful harassment. It is important to understand the difference between the two so that you can take the necessary steps to address the behavior and, if necessary, file a claim. A highly skilled sexual harassment lawyer will discuss the details of your case, determine whether your legal rights have been violated, and recommend that best legal course of action.

What Legally Counts as Sexual Harassment in New Jersey?

According to the New Jersey Law Against Discrimination (NJLAD or LAD), sexual harassment is a form of illegal sex discrimination. Under New Jersey law, sexual harassment generally falls into the following two categories:

• Quid pro quo harassment. “Quid pro quo” is a Latin phrase that translates to “this for that.” This type of harassment typically involves an imbalance of power where an employee’s job is tied to accepting or rejecting unwanted sexual advances or sexual favors. The following are examples of quid pro quo harassment in the workplace:
  • The conditional promotion. This occurs when a manager tells an employee that they will get a promotion if the employee agrees to go out on a date with them.
  • The threat of termination. If a supervisor or manager inappropriately touches an employee and threatens to terminate their employment if the employee reports the behavior to human resources, this is an example of quid pro quo harassment.
  • Shift scheduling rewards. If a manager repeatedly assigns late-night or low-tip shifts after the employee refused to provide sexual favors, this is a form of quid pro quo harassment.

Keep in mind that you do not need to establish a pattern of behavior if your employment has been threatened. A single instance of quid pro quo conduct is enough to establish a legal violation.

• Hostile work environment harassment. This occurs when unwanted or gender-based conduct is so severe or pervasive that it creates an intimidating, hostile, or offensive work environment. Unlike quid pro quo, a hostile work environment can be created by anyone, including supervisors, co-workers, lower-level staff, or outside vendors, clients, or customers. The following are examples of behaviors that can create a hostile work environment:
  • Repeated sexual jokes or comments.
  • Comments about someone’s body or appearance.
  • Unwanted touching, grabbing, or brushing against someone.
  • Sexual Propositions or repeated requests for dates after rejection.
  • Sending sexually explicit texts, emails, or images.
  • Displaying sexually suggestive or pornographic material.
  • Making degrading comments about someone’s sex or gender.
  • Staring or leering at someone’s body.
  • Continuing sexual behavior after someone has objected.

To determine whether a hostile work environment exists, New Jersey courts use a legal standard known as the Lehmann Test, which is based on the landmark case Lehmann v. Toys ‘R’ Us. To prove a claim of a hostile work environment, you must demonstrate the following:

• The conduct occurred because of your sex or gender.
• The conduct would not have occurred if you were a different gender.
• The conduct was severe or pervasive enough that a reasonable person of the same gender would believe the workplace conditions had become hostile, abusive, or intimidating.

What is Considered Inappropriate Behavior in the Workplace?

Inappropriate behavior refers to any actions, comments, or attitudes that disrupt productivity or make employees uncomfortable. While it may not break any laws or warrant legal action, it can create an unpleasant culture in the workplace. One of the most common examples of inappropriate behavior involves microaggressions. These are subtle, indirect, or accidental comments that express a prejudiced attitude towards a group of people. For example, telling a female co-worker to smile more, asking a person of color where they are really from, or commenting on how articulate a non-white co-worker is are all examples of microaggressions that are inappropriate and can create a hostile work environment, particularly if it becomes a pattern.

When Does Offensive Conduct Become a Hostile Work Environment?

According to the LAD, offensive conduct can be considered a legally actionable hostile work environment when it involves a protected characteristic like sex, race, religion, national origin, disability, or age, and is severe or pervasive enough to make the work environment hostile or abusive. The courts will consider a range of factors to determine whether the behavior is considered severe or pervasive, including the following:

• How often the conduct happens.
• The severity of the conduct.
• Whether the conduct is threatening or humiliating.
• Whether it interferes with the employee’s ability to do their job.
• Whether the conduct is directed at the employee or occurs in their presence.
• Whether a supervisor or someone with authority is involved.

Depending on the nature and severity of the behavior, a single incident can be severe enough to create a hostile work environment. For example, if a supervisor makes a particularly offensive racial slur towards an employee, this single incident may meet the legal standard of creating a hostile work environment.

Examples That Cross the Line – and Ones That May Not

The line between inappropriate behavior and sexual harassment depends on what was said or done, who was involved, and how often it happened. Not every rude or offensive comment or behavior violates the law. The following are examples of conduct that cross the line and are generally considered harassment:

• Sexual comments or jokes about someone’s body.
• Repeatedly asking a coworker out after they have said “no.”
• Unwanted touching, hugging, rubbing, kidding, or other contact of a physical or intimidating nature.
• Making extremely offensive comments about someone’s race, ethnicity, or national origin.
• Mocking someone’s religion, or making repeated offensive comments about someone’s religious beliefs.
• Making fun of an employee’s disability, impairment, or medical condition.
• Threatening someone with termination, demotion, violence, or other serious consequences.
• Retaliating against an employee for reporting harassing or discriminatory behavior.

The following are examples of behavior that may be unprofessional or unpleasant, but do not cross the legal line:

• A coworker makes a single rude comment about another employee’s work.
• A manager gives legitimate criticism to an employee about their performance.
• A supervisor is often short-tempered or unpleasant with employees.
• Two employees have a professional conflict or simply do not get along.
• A manager assigns an employee a less desirable task for legitimate reasons.
• A supervisor makes a single insensitive remark that is not connected to a protected characteristic.

What Haddonfield Employees Should Do Next

If you work in Haddonfield and have experienced inappropriate conduct or sexual harassment in the workplace, there are steps you can take to ensure your legal rights are protected and to prevent the behavior from continuing.

• Document everything. Keep a detailed, private log of every incident, including the following:
  • The exact date, time, and location of the incident.
  • What was said or done. Include exact quotes if you remember them.
  • Who was involved as well as any co-workers who witnessed the event.
  • How you reacted or responded.
  • Copies of emails, text messages, voicemails, or social media chats.
• Clearly state that the behavior is unwanted. If you feel safe doing so, tell the person directly that their behavior makes you uncomfortable and that they need to stop. This creates a paper trail and makes it impossible for the person to claim they did not know the behavior was unwanted.
• Report the behavior in writing to human resources, a designated manager, or an executive. Keep a personal copy of your written complaint and document when you submitted it.
• File an official complaint. If your employer fails to take action, or if you face retaliation, you have legal options outside the company, including the following:
  – New Jersey Division on Civil Rights (DCR): You can file an administrative complaint through the NJDCR within 180 days of the last act of harassment.
  – Equal Employment Opportunity Commission (EEOC): You can file a federal complaint with the EEOC within 300 days of the incident.
  – New Jersey Superior Court: Under the NJLAD, you can skip the administrative agency process and file a lawsuit directly in court within two years of the incident.
• Contact an experienced sexual harassment lawyer. A dedicated sexual harassment lawyer will determine whether your legal rights were violated, assist you with filing an official complaint, and negotiate the best possible settlement.

Haddonfield Sexual Harassment Lawyers at The Gold Law Firm P.C. Advocate for Victims of Sexual Harassment in the Workplace

If you have experienced sexual harassment in the workplace, or have questions about whether inappropriate behavior crossed a line, do not hesitate to contact the Haddonfield sexual harassment lawyers at The Gold Law Firm P.C. To schedule a free consultation, call us today at 215-569-1999 or contact us online. Our offices are located in Philadelphia and Pennsauken, New Jersey, where we represent clients throughout the surrounding area.