Law

Harassment and Discrimination in the Workplace

Predictive measures every employer must have.

By Larry Feld, Contributing Writer On Dec 5, 2024

According to the 2023 study “Workplace Harassment and Misconduct Insights,” published by New Jersey-based HR software company HRAcuity, 52% of employees surveyed have experienced or witnessed inappropriate, unethical, or illegal behaviors at work.

To combat workplace harassment, establishing clearly written compliance policies and providing ongoing training is essential. Federal and state laws protect employees from harassment and discrimination, and the U.S. Department of Equal Employment Opportunity Commission (EEOC) website is a must-read for all business owners and human resources teams.

Defining Harassment

“Under Federal and New Jersey employment laws, there are two primary types of harassment that are unlawful,” says Thomas Doherty, employment partner with McCarter & English. “One is known as quid pro quo harassment, Latin for ‘this for that,’ or ‘something for something.’ This type of harassment is easy to recognize.”

For example, threatening an employee’s job if they don’t give in to sexual overtures is quid pro quo harassment. “It’s the proverbial ‘Sleep with me or you’re going to get fired,” Doherty says.

Creating a hostile work environment is the second form of harassment. According to Doherty, this encompasses unwelcome conduct based on a legally protected characteristic, such as race or color, religion or creed, national origin, nationality, sex, pregnancy, sexual orientation, gender identity, disability, marital status and age.

There are additional protected characteristics as well. “Harassment can take many forms such as racial slurs, racial jokes, and gender identity-based slurs,” Doherty details. “For example, it could be displaying offensive material in the workplace such as swastikas, sharing pornography or sexually demeaning depictions of people at work, making comments that are stereotypical about older workers, mimicking a person’s disability, mocking someone’s accent, making fun of a person’s religious garments, or making sexualized gestures or comments,” he notes.

So, what are an employer’s responsibilities?

“There is an obligation on all New Jersey employers to protect their employees under the law,” notes Patti Prezioso, chair, Employment and Labor Practice at Sills Cummis & Gross P.C. “This includes having a workplace that’s free of harassment and discrimination. It’s a serious obligation and takes shape in many forms including training, policies, and handbooks as well as enforcement.”

“Employers want to maintain an anti-harassment policy,” adds Michael Shadiack, chair of the Employment and Labor Practice Group at Connell Foley, LLP, noting that the policy needs to be included in a formal employee handbook. “The handbook should be updated to align with the current laws and regulations as well as the EEOC guidance,” Shadiack explains.

What Goes into the Handbook?

“Everybody has their special sauce for how they do employee handbooks,” quips Prezioso. “I think the most important aspect is to be clear and overt [regarding] how these complaints should be reported and be escalated,” she says.

Shadiack agrees, adding that it is also critical to have supervisory responsibilities clearly defined. “The policy in the handbook should be a guide for supervisors to say, ‘Okay, I’ve now received this complaint. What is the internal mechanism in place to bring this forward?’” he says.

A Formal Procedure

“Employers also need to lay out a complaint procedure that employees can use to the extent they feel that they’re a witness to a harasser and/or they are a victim of harassment,” notes Peter Frattarelli, partner, chair of the Labor & Employment Group at Archer & Greiner P.C. “Employees should be allowed to complain to pretty much anybody in the organization who’s in a position of authority,” he adds.

The stakes are high for managers who fail to report harassment, as they can be sued personally in New Jersey. “Supervisors are out on the front line,” notes McCarter & English’s Doherty.

Training

Absent the training process, chaos can bloom quickly. “Things fall apart even though you have a written policy,” Frattarelli cautions. “An employee may not complain formally to HR or may not complain formally to someone, but they may raise it in front of their supervisor. If that happens, the company is responsible to investigate,” he relates.

Shadiack agrees: “Employers want to conduct regular workplace harassment prevention training for all employees. I always recommend having two sessions – one for non-supervisory personnel and another for supervisors and managers.”

Frattarelli concurs, stressing the importance of supervisor training. “Manager and supervisor training needs to be a little bit enhanced – not just explaining what harassment is in the policy, but also what their obligations as supervisors and managers are,” he adds. For example, supervisors cannot promise an employee confidentiality, as the supervisor’s responsibility is to report the incident to HR or upper management. It can be uncomfortable.

Handling Complaints

“It’s always a difficult situation when there’s an active complaint because people are used to working together,” Prezioso suggests. “Both the victim of discrimination as well as the person who is the object of the complaint will be uncomfortable.”

Prezioso stresses that it’s important for employers to neutralize the situation.

“That means making sure the person who complained is safe, and supervisors listen with an open mind to the complaint,” she notes.

“Employees are entitled to have an investigation performed to learn if the allegations are true,” Frattarelli says. “If the complaint is severe enough, the company might suspend the accused harasser pending the investigation. Alternatively, the impacted employees might be separated so they don’t have to work together, if that is possible. Regardless, employers must investigate every complaint. Depending on the results of the investigation, the harasser might get disciplined. They could get fired. They may be required to do refresher harassment training.”

To access more business news, visit NJB News Now.