February 25, 2020

By: Brigette N. Eagan

Proposed Amendments To The NJLAD Will Change The Management Of Harassment, Discrimination And Retaliation Claims In The Workplace

Potential Game Changer

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This month, New Jersey’s Division on Civil Rights (DCR) issued Findings and Recommendations on Preventing and Eliminating Sexual Harassment in New Jersey (the Recommendations). At about the same time, Governor Phil Murphy released proposed legislation aimed at strengthening New Jersey’s Law Against Discrimination (NJLAD), the law which makes discrimination and harassment unlawful in the workplace.

The Recommendations begin by explaining the pervasiveness of sexual harassment and employee fear of making internal complaints in the workplace. In fact, the DCR, citing statistics from the Equal Employment Opportunity Commission, reports that “75% of employees who spoke out against workplace mistreatment faced some form of retaliation.” The Recommendations proceed to outline a multi-layered approach for combating sexual harassment and retaliation in employment. The approach calls for: clarifying the legal standard in claims for hostile work environment based on gender, amending the NJLAD to protect domestic workers and unpaid interns, requiring employers to implement written anti-discrimination and harassment policies (the policies must detail the consequences of prohibited discrimination and harassment and how to make internal complaints), mandating anti-discrimination and harassment training for employees and supervisors, eliminating some employer defenses in sexual harassment claims, and extending the time limitations for employees to file administrative and civil complaints of sexual harassment.

Governor Murphy’s proposed amendments to the NJLAD mirror the Recommendations, except in one fundamental way. The Recommendations are limited to sexual harassment in the workplace, while many of the proposed amendments deal with harassment based upon all traits protected by law, including gender.

Legal Standard Of Hostile Work Environment Harassment

Governor Murphy’s proposed legislation clarifies the standard for establishing a claim for unlawful hostile work environment. The law remains that the offending conduct must be based on any protected characteristic, including sex, to be actionable. Also unchanged is the requirement that a reasonable person in the same protected class would have to find the complained-of conduct sufficiently severe or pervasive to constitute a hostile work environment. However, the proposed amendments instruct that when considering whether an employee has been subject to a hostile work environment, the following must be taken into consideration:

  • The totality of the situation rather than considering offending instances in isolation;
  • Minor offending conduct, alone, will not create a hostile work environment, but will be considered when evaluating the totality of the circumstances;
  • One offending instance may, in certain circumstances, rise to the level of a hostile work environment;
  • Whether the employee is aware, directly or indirectly, that others have been harassed in the workplace;
  • The offending conduct need not be physical, but may be “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.”
  • The complaining employee need not suffer a loss in any employment benefit or that the employee’s productivity declined.

Protected Parties

The amendments adopt the Recommendations that the NJLAD’s anti-harassment protections extend to domestic workers (individuals employed in the home or a family member’s home as a caretaker, babysitter, nanny, au pair, housekeeper, maid, cleaning person, cook, or gardener) and to both paid and unpaid interns.

Mandatory Reporting To The State

Large New Jersey employers (those with 50 or more employees, determined by the number of employees working both in and outside of New Jersey) would be required to file annual reports with the DCR of all internal complaints of harassment, discrimination, sexual harassment, and retaliation. The employee’s protected category would also be identified in this report.

Time Limitations

Governor Murphy’s proposals would extend the time period for employees to file a civil complaint of harassment or discrimination in the New Jersey court system from two to three years after the offending event. The time period for filing an administrative complaint with the DCR would extend from six months to one year.

Written Policies

An employer would have one year from the date of enactment of the amendments to implement a written anti-discrimination and harassment policy. The policy must state that the employer does not tolerate discrimination and harassment, and that this type of conduct is equivalent to misconduct. The policy would also provide that supervisors and managers who permit discrimination and harassment to continue in the workplace will also be subject to discipline. As to the offending conduct, the amendments would require the policy to provide examples of prohibited discrimination and harassment in the workplace, as well as the consequences for engaging in this type of misconduct.

The proposed amendments would also require the written policy to contain a complaint procedure for making internal complaints, a commitment by the employer to conduct “prompt, thorough, and impartial investigations,” as well as a no-retaliation statement.

The amendments would require distribution of the policy upon hire and then annually. Employers would also be required to distribute the policy to any complaining employee, any employee participating in an internal investigation, and when the policy is updated. The amendments provide that the policy be written in English, Spanish, or the employee’s primary language.

The proposed amendments impose special obligations on larger employers, which are those employers with 50 or more employees in any location (inside and out of New Jersey). These large employers must implement a policy that contains multiple avenues to report a violation and that describes the investigation process. Large employers would also have to post the policy on its website and distribute the policy upon an employee’s promotion.

Mandatory Training

As already required in New York, the proposed law would require mandatory training on discrimination and harassment, as well as on the employer’s required policy. Training requirements would extend to new employees (to be held within their first 90 days of hire) and then every two years after. The training components would cover the required components of the written policy plus bystander intervention (the requirement that any employees aware of harassment or discrimination report it).

Training would also cover supervisors. This supervisor training would include special responsibilities, due to the nature of the positions they hold, to prevent discrimination, harassment, and retaliation. As with the written policy, training would be required in English or in the employee’s primary language. The Governor also charges the DCR in his proposed legislation with publishing a model training for small employers to use.

For large employers, special requirements would apply. The training would be live (in-person) and the trainer must allow employees to ask questions. These large employers would not be eligible to use the DCR’s model training for small employers.

Bottom Line

In sum, the proposed amendments to the NJLAD would require employers to aggressively implement and enforce anti-discrimination and harassment mandates, as well as train and monitor their employees. We will closely track the proposed legislation to provide real-time updates. However, we anticipate that all New Jersey employers can count on mandatory training and written policy requirement. While we await this legislation, employers should add anti-discrimination and harassment language to ancillary policies, such as to their misconduct, social media, and e-mail policies. These simple amendments will illustrate an employer’s vigorous commitment on prohibitions against harassment in the workplace.

To learn more about how your company can ensure compliance with New Jersey’s harassment laws in the workplace, please contact Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group, at  or Brigette N. Eagan, Esq., Counsel in the firm’s Human Resources Counseling & Compliance Practice Group at 973-533-0777.

 

Attachment: Read the full Division of Civil Rights Report here

Tags: GENOVA BURNS LLCHarassmentBrigette EaganNew JerseyNJLADhostile environment

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