By: Chantal N. Guerriero, Esq. and Ty Hyderally, Esq.

Recently, Governor Murphy announced his intentions to clarify and strengthen New Jersey’s anti-discrimination and harassment statute, the New Jersey Law Against Discrimination (“LAD”). Compared to other states, the LAD already stands out as a particularly inclusive and protective statute for employees who have been discriminated against or harassed in the workplace. However, a recent report from the Division on Civil Rights (“DCR”) on preventing and eliminating sexual harassment in New Jersey shed light upon the gaps in the statute that leave victims of harassment vulnerable, thereby prompting Governor Murphy to propose changes which would fill such gaps.

The study noted that an overwhelming eighty-one percent (81%) of women have experienced some form of sexual harassment in their lifetimes, of which thirty-eight percent (38%) occurred in the workplace.  Of those cases which occurred in the workplace, ninety-percent (90%) never reported the harassment. Such hesitation to report could be attributed to fear of retaliation, unequal bargaining power, and the victim’s shame and embarrassment. But with the rise of the #MeToo movement, victims should feel more empowered and equipped than ever to take on a claim against a wrongdoing employer.

Moreover, the laws are changing to reflect this societal shift. To that end, Governor Murphy’s changes aim to clarify any gray areas of the LAD, expand its protections, increase employer accountability, and ensure a just outcome for those employees with a sexual harassment claim.

Under the LAD, one requirement to bring a hostile work environment claim against an employer is that the sexual harassment must have been “severe or pervasive.” The way this requirement has been interpreted has led to some confusion and less-than-just outcomes in prior sexual harassment claims in which one single violative act, such as a singular incident of unwanted touching, occurred.  Courts have found that a single act does not demonstrate that the behavior was “severe or pervasive.” The proposed amendments would make clear that a single act could be enough the constitute a hostile work environment, thereby satisfying the “severe or pervasive” requirement.

Additionally, the amendments seek to include both domestic workers as well as unpaid interns under the protections of the LAD. Currently, such workers who experience sexual harassment while at work are not protected under the statute, and thus have no recourse to bring a sexual harassment claim. The amendments reflect that these groups may already be especially vulnerable because of their lack of bargaining power, thereby making it that much more crucial to include them under the protections of the statute.

Mandatory data collection and reporting would also be required under the proposed changes. To raise awareness, collect data, and ultimately shed light upon sexual harassment in the workplace, employers with more than fifty employees would be subject to a mandatory annual collecting and reporting of sexual harassment claims to the DCR. The reporting would include the number of complaints filed by employees, as well as the number of claims that were substantiated and unsubstantiated. That being said, the employer’s compliance with this requirement would not protect them from potential liability for a violation of the LAD.

All in all, New Jersey, and the country as a whole, continues to head in a progressive direction in which the tolerance and space for sexual harassment has been eliminated. In a world with a zero-tolerance policy for sexual harassment, and the promise of laws that heavily favor those who have experienced it, employees should hesitate no longer to hold their employers accountable for their actions.

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