By:  Francine Foner, Esq. and Ty Hyderally, Esq.

On the heels of recent New York legislation mandating that employers in New York State establish a sexual harassment prevention policy and provide employees with sexual harassment prevention training, New Jersey lawmakers have re-introduced legislation which would mandate workplace training on unlawful discrimination and harassment, and strengthen the prohibition against hostile environment harassment under the New Jersey Law Against Discrimination (NJLAD). First introduced in September 2020, the bill, sponsored by Assemblywoman Annette Quijano (Union), was re-introduced earlier this year and has been referred to the Assembly Labor Committee.

The goals of the proposed law include codifying the standard for hostile environment harassment claims set forth in Lehmann v. Toys R Us, Inc., 132 N.J. 587 (1993); Taylor v. Metzger, 152 N.J. 490 (1998); L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381 (2007); and Justice Ginsburg’s concurrence in Harris v. Forklift Systems, 510 U.S. 17, 26 (1993) (Ginsburg, J., concurring).  To state a claim for hostile environment harassment under this standard, “a complainant shall show conduct that occurred because of sex or any other characteristic of the individual protected under [the NJLAD], which a reasonable person in the complainant’s protected class would find to be sufficiently severe or pervasive so as to alter the conditions of employment and create an intimidating, hostile, or offensive work environment.”  If such a violation occurs in the workplace “it shall also be an unlawful employment practice.”

The bill’s stated intent is to disavow past interpretations of the standard for hostile environment harassment claims under the NJLAD which are at odds with this standard. For example, the bill cites to and expressly rejects the rationale of one Court that women in the workplace should tolerate “socially uncomfortable situations that many women encounter in the course of their lives when someone in whom they are not interested persists in trying to persuade them otherwise.”

The law provides that when determining whether the conduct alleged is sufficiently severe or pervasive to constitute a hostile work environment, the Court should be guided by the following standards:

• the totality of the circumstances, including the cumulative effect of all incidents of harassing conduct shall be considered as a whole, rather than considering individual incidents in isolation;
• a single incident of harassing conduct may be sufficiently severe to create a triable issue of fact regarding the existence of an intimidating, hostile, or offensive work environment;
• de minimis incidents such as petty slights or trivial inconveniences shall not by themselves be actionable, provided however that a court shall consider all evidence, including de minimis or isolated incidents, when evaluating the totality of the circumstances;
• consideration of whether a reasonable person in complainant’s protected class would consider the conduct to be sufficiently severe or pervasive to alter the conditions of employment, provided that a complainant’s subjective responses to the harassing conduct shall be considered as part of the totality of the circumstances that are relevant to whether a reasonable person belonging to the same protected class would consider the conduct to be sufficiently severe or pervasive to alter the conditions of employment;
• the complainant’s knowledge of harassment directed to others may be relevant to evaluating whether a hostile work environment exists, whether or not the complainant witnessed the harassing conduct;
• harassing conduct may include but not be limited to physical contact or gestures, threats, abusive or offensive language, damage to or interference with personal property, or offensive written or verbal communications or comments, whether such conduct is of a sexual nature or otherwise;
• harassing conduct shall not be construed to require physical contact to qualify as severe or pervasive; and
• It shall not be necessary to demonstrate loss of tangible job benefits to establish a violation of this subsection, nor shall it be necessary for the complainant to prove that the complainant’s tangible productivity declined because of the harassing conduct.

In addition, the bill provides that an employer is liable for the unlawful harassment if the employer, or its agents or supervisors, knew or should have known of the harassing conduct and failed to take appropriate preventive or corrective action. An employer may also be held responsible for the harassing conduct of non-employees if the employer, or its agents or supervisors, knew or should have known of the conduct and failed to take appropriate preventive or corrective action.

The bill also would require employers to provide mandatory workplace training on unlawful discrimination and harassment, including sexual harassment, to all new employees within 90 days of initial hire, and to all employees at least once every two years, and details specific training requirements for supervisory employees and non-supervisory employees.

By clarifying the circumstances which support a claim of hostile work environment and mandating workplace training on unlawful discrimination and harassment, if enacted, this law would be a welcome advancement for the rights of New Jersey employees to be free from unlawful discrimination and harassment in the workplace.

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