By Steve Flamisch
Emboldened by a wave of sexual harassment allegations against Hollywood stars, television personalities, and political figures, a growing number of Americans are opening up about their own experiences with sexual harassment.
The Rutgers University—New Brunswick School of Management and Labor Relations (SMLR) recently announced two new professional workshops designed help employers prevent and properly investigate claims of sexual harassment in the workplace.
SMLR Assistant Teaching Professor James M. Cooney, Esq., who has represented plaintiffs in sexual harassment cases, will lead one of the workshops. Rutgers Today asked Cooney about the legal options available to victims.
What constitutes sexual harassment in the workplace and when does it rise to the level of criminal activity?
Cooney: Workplace sexual harassment typically involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment based on a worker’s sex. A “hostile work environment” can be created by inappropriate conduct, such as telling sexually explicit jokes or displaying offensive sexual images at the workplace. If the conduct involves unwanted touching, internet or in-person stalking, or other egregious conduct, then criminal laws may be implicated.
What should victims do in order to document instances of sexual harassment?
Cooney: A victim should maintain a diary or log, wholly separate from any other document, to record dates, times, and other details of sexual harassment incidents. This could prove valuable in recalling specifics at a later date. In certain cases, victims of harassment have even audio-recorded harassers making inappropriate comments. New Jersey has a “one-party consent” law that makes such recording generally permissible.
Should victims confront their harasser or go straight to their supervisor?
Cooney: This will vary, based on the situation. A person should let the harasser know that the conduct in question is unwelcome and unwanted, although this is sometimes easier said than done. The worker should definitely consider filing a complaint under his or her employer’s sexual harassment policy. If uncertain of the objectivity of that process, the worker can complain to a government agency, such as the Equal Employment Opportunity Commission (“EEOC”) or NJ Division on Civil Rights (“DCR”), or consult with an attorney.
Which legal remedies and damages are available to victims?
Cooney: Upon a favorable court verdict, a plaintiff will be eligible for a range of remedies, such as reinstatement to the job, back pay, compensatory damages for emotional distress, punitive damages, and reimbursement of attorneys’ fees and costs related to the case. Most credible claims of sexual harassment are settled without a trial.
Are victims prohibited from outing the harasser after a settlement?
Cooney: Employers and harassers will usually settle claims only if the plaintiff agrees to a confidentiality or non-disclosure provision, typically stating that the plaintiff will re-pay some or all of the settlement proceeds if she goes public about the settlement terms or the underlying facts of the case. Therefore, any person who has signed such an agreement should consult with counsel prior to making any public statements. Based on recent high-profile events, some states, including New Jersey, are considering whether to ban non-disclosure agreements in cases of sexual harassment or assault. This is due to a public safety concern that other women could be placed at risk if victims of sexual harassment are not permitted to go public with specifics about known harassers.
What is the statute of limitations for workplace sexual harassment in New Jersey?
Cooney: To bring a sexual harassment claim under the NJ Law Against Discrimination, a person must file a complaint with the NJ Division on Civil Rights within 180 days, or file a lawsuit within two years. To bring a claim under the federal Title VII Civil Rights law, a worker in New Jersey must file a charge of discrimination with the Equal Employment Opportunity Commission within 300 days.
What can employers do to protect their workers and properly investigate claims?
Cooney: Employers are under a legal obligation to take reasonable measures to provide a harassment-free workplace. An employer must implement and distribute an effective sexual harassment policy, ideally a “zero tolerance” policy, and require all employees to complete sexual harassment training. An employer must likewise ensure that all complaints are investigated and remedied in a prompt, fair, and impartial manner. If a conflict of interest or other reason precludes such an internal investigation, an employer would be well-advised to retain an impartial third party, such as an experienced employment attorney, to conduct the investigation and make recommendations.
Though you are no longer handling sexual harassment cases, recent events in the news must bring back some memories for you. What was it like representing victims?
Cooney: It was always rewarding to resolve a sexual harassment claim so as to help a victim feel that some form of justice was secured. Nevertheless, many victims of sexual harassment suffer ongoing trauma and emotional pain, regardless of any settlement, and that was always difficult to witness.