Tag: Sexual Harassment

DEFENSE TO SEXUAL HARASSMENT SUITS STRENGTHENED BY NEW JERSEY HIGH COURT RULING

Last week, the New Jersey Supreme Court in Aguas v. State of New Jersey, adopted the test set forth in two federal cases, namely, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, when reviewing sexual harassment claims under the New Jersey Law Against Discrimination (“LAD”). Prior to this landmark decision, the New Jersey Supreme Court maintained that an employer is vicariously liable if a supervisor creates a hostile work environment through sexual harassment. Now, under the Ellerth/Faragher analysis, the Court held that an employer may escape liability if it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and if an employee unreasonably failed to take advantage of any preemptive or corrective opportunities provided by the employer, or fails to avoid harm otherwise.

The Court also broadened the definition of a “supervisor” under the LAD. The Court defined supervisors as not only individuals who have the authority to make tangible employment decisions, but also those in charge of the employee’s daily work activities.

This decision will likely result in many employers using its anti-harassment policy as a defense to sexual harassment claims under the LAD. As such, it is important that victims of sexual harassment report their claims of sexual harassment in the workplace and consult an attorney.

NLRB RULES THAT EMPLOYEES HAVE RIGHT TO SEEK ASSISTANCE FROM CO-WORKERS IN HARASSMENT CLAIMS UNDER THE NLRA

On Monday, the NLRB ruled that an employee of Fresh & Easy Neighborhood Market had the right to solicit assistance under the National Labor Relations Act from co-workers in support of her sexual harassment claim.  The employee in this case was trying to find support for her individual sexual harassment claim by asking co-workers to provide evidence on her behalf.

  The employer was conducting it’s own investigation and asked the employee to stop collecting statements from co-workers.

In order for conduct to be protected under the NLRA, an employee must show that he or she was engaging in “concerted” (group) activity for the “mutual aid and protection” of others, rather than just to benefit his or her self.  In this case, the National Labor Relations Board found that this employee’s conduct was protected and held that an employee’s subjective intent is irrelevant in determining whether the conduct is concerted or for mutual aid or protection. 

Rather, the NLRB focused on whether there was a “link between the activity and matters concerning the workplace or employees’ interests as employees.”  As such, because the employee here attempted to get others to help her in her complaint against the company and attempted to stop sexual harassment at the company, the NLRB held that there was, in fact, group action for the mutual aid and protection of others.

This ruling reinforces the important point that the National Labor Relations Act protects not only union activity but also attempts by any employee to obtain the assistance of another employee regarding their employment conditions in the workplace.

UNPAID INTERNS IN NEW YORK CITY NOW PROTECTED AGAINST SEXUAL HARASSMENT AND DISCRIMINATION IN THE WORKPLACE

Recently, the New York City Council unanimously voted to pass an amendment to the New York City Human Rights Law, which will protect unpaid interns from sexual harassment and discrimination.

  This amendment was prompted by a 2013 decision, which held that an unpaid intern at Phoenix Satellite Television, could not bring a sexual harassment suit because she was not a paid employee.   This bill is expected to be signed by New York City Mayor Bill de Blasio.
 

Upon signing, New York City will become one of the only cities in the country, along with Washington D.C., to have explicit provisions protecting unpaid workers.