State Report Cites Gaps in NJ Law on Sexual Harassment

Colleen O'Dea | February 19, 2020 | Politics, Social
Legislation designed to make fixes — unveiled by Gov. Phil Murphy at Trenton news conference — would impact all public and private employers
Credit: Edwin J. Torres/ Governor's Office
Gov. Phil Murphy announces legislation to overhaul New Jersey’s anti-workplace harassment law.

A report released Tuesday by the New Jersey Division on Civil Rights points to a number of shortcomings in the state’s anti-discrimination law, prompting Gov. Phil Murphy to propose changes that would better combat sexual harassment in many areas of life.

New Jersey’s Law Against Discrimination (LAD) is generally considered better than the federal Title VII law at protecting individuals from discrimination, including sexual harassment. But it does not cover all workers or require companies to have written policies against sexual harassment, according to the report, “Preventing and Eliminating Sexual Harassment in New Jersey.” The report also states that the standard an individual must meet to prove a hostile work environment is also vague and needs clarification.

The report details cases where LAD fell short. In one, judges found that a supervisor grabbing the buttocks of an Atlantic City police officer did not meet the “severe or pervasive conduct” standard to qualify as harassment. Nor did the conduct of an older man who reportedly followed and repeatedly pursued and asked out two young women over the course of more than a year at the Princeton Theological Seminary.

In the latter case, an appellate panel wrote that the pursuer’s “repeated and unwelcome behavior was one of the 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” but “did not cross the line and become actionable harassment.”

NJTV News: A report on Gov. Phil Murphy’s press conference unveiling anti-workplace harassment legislation

“We need to clarify the legal grey areas,” said Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault, during a press conference in Trenton called to release both the report and corresponding legislation to change the LAD. “We need to invest in training. We need to strengthen our policies and expand our statutes of limitations to be more trauma-informed.”

The administration of New Jersey’s first-term Democratic governor already has taken a number of steps to deal with sexual harassment, signing six bills to improve government policies and reporting of harassment that were recommended following legislative hearings into an allegation of sexual assault by a Murphy campaign volunteer against a campaign staffer and its aftermath. All of those only affected state government employees.

Weinberg to shepherd legislation

The legislation Murphy unveiled Tuesday — to be sponsored by Sen. Majority Leader Loretta Weinberg (D-Bergen), who also sponsored the state government harassment bill package — would impact all public and private employers.

Among the recommended changes:

  • Clarifying the “severe or pervasive” standard for establishing a hostile work environment and making it clear that a single incident can create such an environment and that harassment need not involve physical touching;
  • Requiring all employers to set workplace policies and training on unlawful discrimination and harassment, with the Division on Civil Rights (DCR) creating model policies and online training to help with compliance;
  • Adding both domestic workers and unpaid interns to the employees protected by the LAD.

The report cited several instances of harassment among domestic workers and interns. In one case, a worker was forced to bring her boss a towel whenever he showered and one day he touched her sexually in front of his son. In another, an employer climbed into bed with a live-in domestic worker.

Yasemin Besen-Cassino, who chairs the sociology department at Montclair State University and has done research into sexual harassment, applauded the proposal to protect domestic workers and interns.

“One of the things that we see in the research is that, since sexual harassment is about inequality and power, these are some of the most vulnerable people in the workplace,” she said. “I think these extended employee protections would be a welcome change.”

Undocumented immigrants may be victimized when an employer threatens to report them to federal immigration authorities if they don’t do as they are told. The report cites the case of an undocumented migrant in Warren County who was told by her boss that in order to collect her money on payday she would have to perform oral sex. This continued for six months until he hurt her and she needed immediate medical attention.

The report also showed how hotel staffers and healthcare workers are also vulnerable to harassment. In an example, a patient made sexual comments and tried to touch the breasts of a nurse’s aide who bathed him in the morning, while another asked his caregiver to touch his genitals in a sexual manner. A hotel maid testified that guests have offered to pay her if she will “do a little extra for me.”

These individual stories came to light during three hearings held jointly last September by the DCR and the Coalition Against Sexual Assault. Writing in the report, DCR director Rachel Wainer Apter said the agency’s first goal was “to uncover the depth and breadth of the problem” in order to better understand it and try to solve it. They also wanted to put a human face to the statistics about sexual harassment.

Rampant practice

Despite state and federal laws banning sexual harassment, the practice is rampant, according to the report. It cites one study that found 81% of women and 43% of men experienced at least some form of harassment during their lifetimes and that 90% of those who experience workplace harassment never report it. Fear of retribution, including loss of a job, is the main reason experts say people don’t report harassment.

There are virtually no statistics on harassment in New Jersey, a situation the state seeks to rectify with another legislation change that would require employers with 50 or more workers to collect and annually report data on complaints they receive.

Lee Moore, a spokesman for the attorney general’s office said the DCR’s case-tracking system indicates seven sexual-harassment complaints were filed in 2018 and 16 were filed last year. But as some cases may have been recorded as gender discrimination or other harassment, the division is in the process of upgrading its system to more accurately report all sexual harassment complaints filed, he said.

The report defines sexual harassment as unwelcome sexual advances, requests for sexual favors, verbal or physical harassment of a sexual nature, or offensive remarks about a person’s gender, or because of a person’s gender. It can be verbal, physical or visual, and can occur in person, over the phone or online. Sexual harassment is prevalent not only in the workplace, but also in schools, housing and public accommodations.

While citing problems with the “severe or pervasive” standard for establishing a hostile work environment, the report notes that New Jersey courts generally have been more willing to interpret the law broadly. In one instance, it noted, harassment was found in a case where a supervisor made sexual comments about an employee’s body, discussed a “threesome” and touched her hand.

Yet that is not always the case, which is why the report calls for and the legislation includes clarification of that standard.

The report also recommends extending statutes of limitation: increasing the amount of time an individual has to file a case under the LAD from two years to three and doubling the time allowed for filing a state Civil Rights Division case from six months to a year.

‘A beginning’

Weinberg, who has been heading an ad hoc group looking into harassment and misogyny in New Jersey politics, said the proposal is a start that she hopes will expand as it moves through the legislative process.

“I think it’s a beginning,” she said. “I think we have more to do … This is not a cure all.”

For instance, Weinberg said she wants to see changes in the rules regarding cases the DCR investigates.

Currently, if a person chooses to file a complaint about sexual harassment with the division, it launches an investigation. The division moves to prosecute if it finds probable cause to believe the law was violated, Moore said. If the division does not find probable cause, the complainant loses the ability to go to civil court unless an appellate panel overturns the DCR’s probable-cause finding.

“That needs some work,” Weinberg said, noting that the DCR’s website does not specify that “you give up your right to a court case if they decide there is no probable cause.”

Nancy Erika Smith, a New Jersey attorney who has worked in employment law for more than three decades and represented Gretchen Carlson in her sexual-harassment case against former Fox News chairman Roger Ailes, echoed Weinberg’s comments.

“The Division of Civil Rights is not your friend,” she said, adding that while the agency has done good work in such areas as housing discrimination, it finds probable cause in sexual-harassment cases at a very low rate. When an individual hires her, she asks if a complaint has been filed with the division and, if so, “we withdraw it immediately.”

DCR has had some recent successes. For instance, last year the division won a case in which the owner of Irvington-based Tyce Transportation was ordered to pay nearly $300,000 for sexually harassing a school-bus aide and firing her 10 days after she filed a complaint with the DCR.

Smith said employers would have more incentive to stop sexual harassment if they faced more trials in open court.

Bob Considine, a spokesman for the New Jersey Business and Industry Association, said that the group is still reviewing the legislation but encourages its members to adopt clear policies and take steps to prevent harassment.

“Sexual harassment or any harassment in the workplace should not be tolerated on any level,” he said. “We have long urged employers to take responsibility on their own to establish a culture that does not condone harassment — and that includes having clear, established anti-harassment policies that make evident what the complaint procedure is and that there is proper training to prevent and address harassment in the workplace. We also urge employers to conduct prompt investigations of all complaints and that appropriate remedial action be taken against offenders if a violation is found.”

Action by state oversight boards

Weinberg said she hopes the legislation will get a hearing within the next few months.

The DCR report also called for employers, landlords and the state to do a better job informing the public of their rights.

In addition, two other state divisions are taking action to protect those in the areas they regulate.

The state Division of Gaming Enforcement intends to propose new regulations, including one requiring each casino to develop a “Plan Prohibiting Harassment or Discrimination” to strengthen protections for all prospective and actual employees of casino licensees and casino-license applicants. Casinos would also be required to outline policies, strategies, procedures and internal requirements for preventing discrimination or harassment, including sexual harassment.

And the Division of Consumer Affairs is conducting a comprehensive review of how its 51 professional boards — which oversee approximately 720,000 licensed professionals, from accountants to doctors and plumbers to veterinarians — address allegations of sexual harassment and assault by licensees and applicants. The review will include evaluations of whether boards should ask additional questions on license applications, how boards approach investigations and discipline, and how boards engage with complainants alleging sexual misconduct by a licensee or applicant.

DCA’s review comes at the same time as many of New Jersey’s professional boards are already addressing the problem. Last year, a number of boards cracked down on licensees for engaging in sexual misconduct, either in the scope of their practice or elsewhere. In addition, the Board of Massage and Bodywork Therapy proposed new rules to prevent and detect sexual misconduct.

Paul R. Rodríguez, acting director of the Division of Consumer Affairs, said in a statement that the boards “have tremendous power in effecting” change.

“By reviewing how individual Boards address issues related to sexual harassment and misconduct by licensees and applicants, we can identify best rules and practices and use them to provide a more uniform approach to promoting a stronger, fairer environment for New Jersey’s professionals and the people they serve.”