New Jersey recognizes two forms of sexual harassment. The first is call quid pro quo harassment.The phrase is Latin and means a solicitation for sex in return for something, such as a promotion, raise or just being allowed to stay employed. Essentially, the victim receives a sexual proposition at work and the victim understands that she (or he) must tolerate sexual advances in order to continue employment, achieve advances in pay or job title or avoid adverse employment actions.
For example, I was involved in a case where a client asked her boss, the president of the company, if she could get a raise. He responded by sending her a text message asking her sexually charged questions. He told her that if she answered his four questions, they could discuss her raise. This was a clear example of quid pro quo harassment.
The second form of sexual harassment is hostile work environment. This type of harassment occurs when an employee’s workplace is subjected to sexual, abusive or offensive sexual conduct, such as overt sexual comments, offensive sexual touching, jokes, stories, photographs, video, etc., that a reasonable person would conclude that the workplace environment can no longer be tolerated. The sex based activities (jokes, email, text messages, video, etc.) is considered a hostile or unlawful work environment when the conduct is severe or pervasive enough to make a reasonable person of the victim’s gender to believe that the conditions of employment have been altered. The harasser’s conduct does not have to involve physical contact.
What should you do if you are the victim of sexual harassment?
1. Memorialize all of the event(s) in writing. Imagine yourself as a police detective writing an incident report. Describe in full detail what happened. Who was involved and who witnessed it? When did the incident(s) take place? Where did it/they take place? Write down, to the best of your ability, all of the specific conversations that took place. If you can recall exact dialogue, then place those sentences down in quotations.
2. Place this writing in a personal journal that is kept at home, not at work. Sometimes if a person is wrongfully fired, they are immediately escorted out of the premises and are not allowed to return to her work station/office to retrieve their personal property.
3. If you want to send information concerning the sexual harassment situation to your home computer or to your own attorney, then it might be wiser for you to use your personal email account and not your work email. Your employer may legally be able to read all of your work emails.
4. Review your employee handbook and carefully read the sections on sexual harassment and harassment/discrimination complaint procedures. Typically your handbook will define sexual harassment and give you a few examples. This can help you verify that the conduct that you have been experiencing was sexual harassment. The handbook will also identify the person and/or title of the person to whom you are to present your complaint.
5. Before giving your complaint, consider meeting with an experienced employment law attorney who can to listen to your story, and provide you with advice as to whether you have a legitimate claim of sexual harassment. The attorney can also explain the law to you in simple and understandable terms and competently and carefully guide you through the steps of the company's complaint procedures. If you find that your employer is trying to discourage you or retaliate against you for raising your sexual harassment complaint, then your attorney can step forward and handle the situation directly through litigation or through alternative dispute resolution means such as mediation.