For a lot of workers who reach the point where it is necessary to file a sexual harassment lawsuit, your employer may try to defeat your case by placing the focus on what you did or did not do, instead of what your harasser did or the company failed to do. Be prepared to fight back and to win your case. An experienced New Jersey employment lawyer can be integral in helping you do exactly that.
R.M. was one of those sexually harassed workers. Not long after she started as a sales trainee at an auto dealership in Pleasantville, a sales manager began sending her text messages stating his attraction to her and asking her to “hang out” privately in the manager’s hotel room. Taking the manager’s texts as an invitation to have sex, the trainee declined.
After the trainee declined a second time – this time in person and at work – the manager allegedly told the trainee to clock out, to leave the dealership “and don’t come back.”
R.M., like most people, took the instructions of “clock out, leave and don’t come back” to mean she’d just been fired. Eventually, the dealership’s general manager told the trainee that she was not fired and could return “if you want to.” The dealership also fired the sales manager after the trainee showed the general manager the texts.
The trainee later sued for sexual harassment. The employer argued that R.M. could not recover from the dealership because she didn’t “take advantage of the preventative or corrective” opportunities available under the dealerships’ anti-harassment policy.
Specifically, the dealership was relying on a 2015 New Jersey Supreme Court case where that court said that an employer was not vicariously liable for sexual harassment perpetrated by an employee in certain scenarios. There was a potential flaw within this defense, though. The law says that an employer can use this defense to avoid being vicariously liable only if the employee did not suffer an “adverse employment action.” If the harassed worker did suffer such an action, then that defense is completely unavailable for an employer to use to avoid vicarious liability.
You’ll recall that, in R.M.’s case, the dealership’s general manager told her that she was not fired and that she still had a job at the dealership if she wanted it. The employer also contended that the sales manager who engaged in the harassment did not have the authority to fire R.M. All of those underpinned the employer’s argument that the trainee had not suffered the adverse employment action of termination.
You don’t have to have been fired to have suffered an ‘adverse employment action’
Wisely, though, R.M.’s legal team had presented more than just one possible adverse employment action. In addition to termination, adverse employment actions can take the form of a reduction in hours, a demotion, a transfer to a less desired role, a reduction in benefits, or a reduction in pay.
R.M.’s team used that last one. R.M.’s regular pay as a sales trainee was $400 per week. During the week in which the sales manager allegedly told her to clock out, leave and not come back, the trainee received only $262. That difference represented a potential adverse action in the form of a reduction in pay, which meant the employer’s defense didn’t apply and R.M. could continue pursuing her case.
There are several things you, as a worker who endures sexual harassment on the job, can take away from R.M.’s success in the Appellate Division. One is that the mere existence of an employer policy for reporting sexual harassment will not necessarily shield your employer from vicarious liability. Don’t let a “b-b-but we have a policy” argument from your employer frighten you away from continuing your case. This employer had a policy, but R.M. was able to take her case to trial anyway, despite the policy’s existence.
Additionally, the success of this employee is a reminder that supervisors are often the “face” of the employer to the subordinates whom they supervise. When they take an action, whether a proper action or an inappropriate action, they may be acting with express authority or, even if they lack express authority, they may still have implied authority from the employer itself. That can be key to getting the compensation you deserve from your employer.
If your career has been harmed because someone sexually harassed you at work, be prepared to fight back. The skilled New Jersey sexual harassment attorneys at Phillips & Associates are here to help. Our team has the skill, the experience, and the determination to get you the outcome you deserve. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.