Sexual harassment has a reputation as one of the most complicated areas of employment law in New Jersey and throughout the country. This is for a number of reasons, but it is due in part to the fact that there are two forms of sexual harassment and both involve highly sensitive issues. The first type is quid pro quo, and this involves a supervisor or superior requesting sexual favors from an employee. The second type is broader and is categorized as an employer, manager or co-worker creating a hostile work environment.

Also complicating sexual harassment cases is the fact that employer liability varies depending on who is the harasser. An employer is automatically liable for damages when a supervisor is proven to have sexually harassed a worker. However, in cases where the harassment involves only co-workers, it is necessary to prove the employer failed to take action after the harassment came to light in order for the victim to obtain damages from the employer.

In many New Jersey workplaces, the lines between employee ranks are somewhat blurred. An individual worker may have several classes of employees above his or her stature, but who are not necessarily his or her boss. These employees might direct the lower-level employee in some tasks but not in everything. In sexual harassment cases involving employees of different tiers, it can be difficult to ascertain whether the employer should be automatically liable for the actions of employees in superior positions.

While some courts have defined a supervisor as someone who can hire, fire, demote or discipline other employees, others have used the Equal Employment Opportunity Commission’s definition of a supervisor as someone with the authority to direct work activities, including assignments and scheduling, or recommend employment actions.

Last week, the U.S. Supreme Court took up the question of who qualifies as a supervisor under the law for sexual harassment cases. The court’s decision could either significantly restrict or broaden employer liability in sexual harassment cases.

The case before the Supreme Court asks the justices to establish a definition of “supervisor” that all courts would use in future sexual harassment cases. A decision is expected in 2013.

Source: NPR, “Supreme Court to Look at Who Is a ‘Supervisor’ in Harassment Cases,” Nina Totenberg, Nov. 26, 2012

• Our Kingston, New Jersey, law firm handles sexual harassment cases. More information about this area of employment law is available on our Sexual Harassment Claims page.