1. I Can Sue My Employer Simply Because of his/her Hostile Attitude.

An unlawful “Hostile Work Environment Harassment” means conduct and speech that is intimidating, offensive, abusive and/or otherwise offensive, going beyond rudeness or casual joking because of a person’s membership in a protected class (e.g., race gender, sexual orientation, age, nationality, disability or other protected class). If your boss is simply a jerk but is not acting this way because of your membership in a protected class your claim may be dismissed. To qualify as a “Hostile Work Environment,” conduct must be intentional, severe, recurring and/or pervasive and interfere with the employee's ability to perform his/her job.

Hostile work environment harassment is a claim that an employee can make against his or her employer in court.  Harassment that is motivated solely for by other reasons (e.g. personality conflict, management style, verbal arguments) is not actionable in court.

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2I Have Suffered Sexual Harassment and I Should Immediately File a Lawsuit in Court.

A common mistake of victims is to immediately file a matter in court before consulting an attorney or reviewing the company’s employment handbook or his or her contract. Many companies require the employee to follow an internal complaint procedure. 

New Jersey law affords a defense to employers who are genuinely unaware harassment is occurring. Filing an internal complaint before considering a lawsuit gives the employer a chance to investigate and hopefully stop the harassment. The employer who knowingly fails to remedy the harassment does so at its own peril.

3.  Whistleblowers Have to Complain Outside the Organization.

A whistleblower is someone who learns of illegal and/or unethical conduct at the workplace and complains about the bad conduct. Some people are under the misconception that you have to "blow the whistle" to an outside governmental agency in order to be considered a whistleblower. This is not correct. A whistleblower can either complain about the conduct to the appropriate governmental agency (e.g. OSHA for dangerous conditions at the workplace) or internally within the company. If the employer retaliates against the whistleblower, a claim can be filed in court.

4.  Everyone is Entitled to Family Leave (FMLA or NJFLA).

The Federal Family Medical Leave Act (FMLA) provides job security for eligible employees who go out on a medical leave. However, protections under the statute only apply to people who have been employed full time for one year and work at a company that employs 50 or more employees within a 75 mile radius from the worksite.  

In New Jersey you are entitled to leave to care for a family member under the New Jersey Family Leave Act (NJFLA) if the company employs 30 or more employees and you have worked for the company for at least one year.

5.  Discrimination is the Same as Harassment.

People use the terms "discrimination" and "harassment" interchangeably.  But the terms have different meanings.

Discrimination occurs when someone is treated unfavorably or has suffered an adverse employment action (firing, suspension, loss of pay, for example) because of prejudice based on his/her "protected class" such as race, gender, sexual orientation or disability. Harassment occurs when the victim endures illegal communications and behavior (e.g. slurs, gross or offensive jokes, racial stereotypes, etc...) because he/she is a member of a "protected class."

Harassment is a form of discrimination, but not all discrimination claims include harassment. For example, a woman may receive less wages than a man in performing the same job but not be subject to the severe or pervasive offensive language or slurs which characterize harassment.

6.   My Employer Must Have a Good Reason to Fire Me.          

An employer may hire or file an employee at will, meaning the employer can take such action for a good reason, bad reason, or no reason. However, the action cannot be based in whole or in part illegal considerations such as a person’s race, age, gender, sexual orientation, disability or being a whistleblower.

7.   I Shouldn’t Complain in Writing.

Many victims of harassment and discrimination are afraid to complain in writing for fear of retaliation. The fear is understandable. Unfortunately, however, failing to document the discrimination or harassment may result in there not being a record of the unlawful behavior.

Unscrupulous employers often have convenient amnesia, pretending that they are unaware of the problem. This makes it harder to prove discrimination or retaliation for complaining. Victims of discrimination and harassment are well advised to speak with an employment attorney for guidance as soon as the problem starts.

If you believe that any of the above applies to your situation, then the authors of this article would be happy to receive a telephone call from you to discuss further. Please call the telephone numbers below for more information. 

The information contained in this article is not intended to create an attorney client relationship. If you need help with a specific legal problem, contact a qualified attorney or feel free to contact Fred Shahrooz Scampato or David Rostan, attorneys who focus their practice in employment law. Fred can be reached at 908-301-9095, by email at Scampato@njlaborlaw.com or by visiting his website www.njlaborlaw.com. David can be reached at 973-520-8301, by email at rostanlaw@aol.com, or by visiting his web site www.davidrostanlaw.com