NJASA

Sexual Harassment in the Workplace –

Time for a Compliance Check-up

The incidents of alleged sexual harassment in government, in Hollywood, and elsewhere have sparked heightened awareness of this important issue in the workplace. Sexual harassment, in all its forms, is prohibited by the New Jersey Law Against Discrimination (“NJLAD”),¹ and cannot be tolerated by school administrators in the workplace. In general, sexual harassment manifests itself as either quid pro quo or hostile environment sexual harassment. Quid pro quo sexual harassment occurs when a supervisor or staff member requests a sexual favor from another employee (or student) in exchange for preferential treatment of some kind. Hostile work environment sexual harassment occurs when an employee (or student) is subjected to unwelcome verbal, physical, or visual harassment that is so severe or pervasive that it affects the employee’s (or student’s ability) to perform his/her job functions.

Verbal harassment may include unwelcome requests for dates, sexual comments, sexual jokes, and comments about one’s physical appearance. Physical harassment may include unwanted touching, grabbing, pinching, blocking or cornering an individual, and sexual assault. Visual harassment may include displays of lewd posters, sexually explicit photographs, and pornographic videos. Depending on the circumstances, any of these types of harassment individually or in combination, may be sufficient to impose liability on a board if left unaddressed.

In order for a board to avoid liability for any lawsuit alleging sexual harassment, the board must be able to demonstrate that it took reasonable steps to prevent and promptly correct any sexually harassing behavior.² Prevention requires that the board adopt a written policy that addresses illegal harassment and states unequivocally that sexual harassment will not be tolerated. The policy should identify the affirmative action officer (“AAO”) or other individual responsible for receiving and investigating complaints,³ and should address the repercussions to individuals who engage in illegal harassment. In particular, the policy should state that employees engaging in sexual harassment will be subject to appropriate disciplinary action, including termination or tenure charges.⁴ Moreover, the policy should be communicated to all staff, and all staff should receive ongoing training on the policy and the implications of sexual harassment. The AAO or other individual charged with the responsibility for investigating complaints should receive training on the law, policy, and how to conduct investigations. Lastly, in order to demonstrate that prompt corrective measures have been taken, in the face of any complaints, school administrators should be able to show that the complaints are investigated and resolved in a timely manner.

In light of the #MeToo movement and the heightened sensitivity of sexual harassment in the workplace, it is recommended that school administrators review current policies and procedures with their board attorneys to ensure compliance with the law. It is recommended that training be provided to staff, as discussed above, on sexual harassment in the workplace. Further, school officials should determine, in consultation with their insurance brokers, whether there is appropriate insurance coverage in place for potential claims. In addition, school officials should immediately notify their board attorneys and insurance carriers in the event they are served with a complaint or notice of tort claim against the board. School administrators who are accused of wrongdoing should contact their NJASA attorney immediately for specific advice about their situation.

1. N.J.S.A. 10:5-1, et seq.
2. See Aguas v. State of New Jersey, 220 N.J. 494 (2015).
3. There may be circumstances in which a third-party, like the board attorney, may be required to conduct the investigation. See Plummer v. Board of Educ. of the City of Linden, C. #151-12 (April 20, 2012) (board properly exercised its discretion in appointing board attorney to investigate staff member’s affirmative action complaint against superintendent).
4. See, e.g., In the Matter of Tenure Charges Against Dale R. Orlovsky, C. #14-14 (January 6, 2014) (tenured male teacher dismissed on tenure charges for misusing school computer and engaging in email exchanges referencing graphic and explicit sexual language).