Hostile Work Environment – Under the NJ Law Against Discrimination

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The law of harassment has been the subject of much litigation over the past two decades.  The cases have defined harassment in the workplace as conduct which creates a “hostile” environment predicated on one’s protective characteristic. The cases have also demonstrated the importance for employers to have in place anti-harassment policies that help educate and sensitize employees to acts of harassment, that have procedures that allow employees to report acts of harassment with assurances against acts of retaliation, and that provide measures to prevent the recurrence of the harassing conduct; measures ranging from counseling to removal of the harassing employee.

This is equally true in the school setting. All school districts must have well publicized harassment policies. School employees must be made aware of the complaint process, as well as the need to promptly report alleged harassing conduct. Administrators and Supervisors must be trained to respond effectively to complaints of harassment. The purpose of this article is to provide the educational practitioner with a better understanding of what constitutes harassment and a hostile work environment.

The topic of this discussion focuses on adult-to-adult behavior. Prior to determining what constitutes a hostile work environment, understand that the Anti-Bullying Bill of Rights Law does not apply to adult-to-adult behavior. The anti-bullying statute applies only to adult-to-child or child-to-child behavior.  Adult-to-adult behavior is primarily addressed by the New Jersey Law Against Discrimination (LAD). The primary case in New Jersey concerning LAD and a hostile work environment is Lehmann v. Toys’R’Us, Inc.  In Lehmann, the Supreme Court discussed the liability of an employer when there is alleged supervisor misconduct. Lehmann did not address the issue of employer liability for acts of harassment by a non-supervisor (peer to peer). In subsequent cases, the courts discussed employer liability in allegations of co-workers being the harassers and have determined that an employer may be held liable for co-worker harassment when the employer knew or should have known of the alleged harassment and failed to take prompt and adequate remedial action to prevent the harassment. In cases of both supervisory and non-supervisory harassment, the standards for determining whether the conduct constitutes unlawful harassment are the same.

First and foremost, not all perceived harassment is actionable under the Law Against Discrimination (LAD). The definition of a hostile work environment is when an employer or fellow employee harasses another employeebecause of a legally protected characteristic to the extent to which, the working environment becomes “hostile” or “abusive”. The more noteworthy legally protected classes in New Jersey are age, gender, race, religion, ethnic origin, sexual orientation, perceived sexual orientation and disability (physical and mental). Of note, alcoholism is considered a disability under the LAD.  Accordingly, not every perceived hostile working environment is actionable under the LAD because the harassment is not directed at someone because of his/her protected class.  In other words, the hostile work environment must have been created as a result of the harassment being directed at the person’s protected characteristic as set forth above. If the harassment is not directed at someone’s protected characteristic, it is not actionable at law under the LAD.  It is not legally actionable under LAD if the harasser is simply not a nice person and treats everyone equally miserably.  There is no law that reads your supervisor must be a nice person.

It is also important to understand that not every complained of conduct arises to a hostile work environment. The conduct must be “severe or pervasive” enough for the complainant to reasonably believe that the environment has been made “hostile”. Rude, crude and socially unacceptable behavior may not necessarily constitute harassment. Furthermore, some people are more sensitive than others.  How does a court determine a hostile environment with persons of different sensitivities?  Essentially, a court will look to the “reasonable person’s standard”. Would a person of like sensibilities reasonably be offended by the conduct complained of? It may be difficult to define the “reasonable person’s standard” in certain instances.

In analyzing whether a hostile work environment exists, it has to be decided whether the basis of the claim is a legally protected characteristic and is prohibit by the LAD. There are three issues to decide. First, whether the complained of conduct actually occurred. Second, if it is determined that the complained of conduct did occur, it must be decided whether that conduct constitutes harassment on the basis of a legally protected characteristic. Third, if it is decided that the conduct does constitute harassment on the basis of a legally protected characteristic, it must be decided who is to be held responsible for that conduct, the individual or the employer or both.

If it is determined that the complained of conduct would have occurred regardless of the legally protected characteristic, then there has not been unlawful harassment. If the alleged harasser treats all employees equally poor, regardless of a legally protected class, then no actionable harassment has occurred. Although the supervisor may be creating a perceived hostile work environment by the way he/she treats people, it is not legally a hostile work environment, unless the hostility is directed at someone because of a protected characteristic. We would all hope that the work environment be civil, but that is not always the situation. If the supervisor is an equal opportunity SOB, there may be a hostile work environment, but not one which the court will remedy. Rather, the remedy may be internal by addressing the supervisor’s or fellow employee’s conduct to the employer.