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An Employee’s Failure to Report Sexual Harassment to Her Employer Did Not Automatically Defeat Her New Jersey Law Against Discrimination Action

Even though the problem of sexual harassment in the workplace has been brought out of the shadows and into the light in recent years, many studies still show that a substantial percentage of victims don’t report their harassers to their employers. Some say they fear they won’t be believed. Others fear they will be believed and will suffer retaliation for speaking up, up to and including losing their jobs.

Regardless of the exact reasons, a failure to report harassment to an employer should not always be an automatic ticket to dismissal of your sexual harassment case and, in New Jersey, it’s not. Under New Jersey law, an employer’s declaration of “We knew nothing and she told us nothing” is not an absolute defense in a sexual harassment lawsuit. If you’ve suffered harassment at work, don’t let your lack of reporting deter you from taking legal action. Contact a skilled New Jersey sexual harassment attorney to learn more about your options.

The case of a North Jersey police lieutenant serves as one recent example of this principle. D.U. had worked for the police department since 1992. The employment was without incident for a long time but, starting in 2013 or 2014, the lieutenant’s direct supervisor, the city’s Director of Police, allegedly started making undesired sexual advances toward D.U. The lieutenant rejected those advances and, according to her complaint, suffered negative workplace consequences. The director allegedly began treating her differently than male peers, began assigning her less desirable duties (patrol work) and began an internal affairs investigation against her.

Despite possibly sharing her concerns about the harassment with a captain in the department, D.U. never filed a formal complaint within the department about the supervisor’s harassment or retaliation against her.

So, was the undisputed fact that the lieutenant never formally notified her employer about the harassment a fatal flaw to her lawsuit, giving the employer the opportunity to argue that it could not be liable because it had no actual knowledge of the harassment against D.U.? The trial court said yes, but the Appellate Division recently issued a ruling explaining that that was incorrect.

‘We didn’t know and plaintiff didn’t tell us’ isn’t a defense against a harassment claim

Even if a harassed employee did not notify her employer about the harassment and even if the employer actually had no knowledge of the harassment, an employee who is the victim of harassment can still succeed in her Law Against Discrimination lawsuit. The key to the case’s outcome is not whether or not the employee formally complained to her employer or even the employer’s awareness (or lack thereof) related to the harassment. The Appellate Division specifically stated that “we didn’t know and plaintiff didn’t tell us” simply isn’t a valid defense in New Jersey law.

In order to be entitled to summary judgment tossing out an employee’s sexual harassment claim, and employer must show the court that it engaged in “reasonable care” to prevent and to correct the sort of harassment of which the employee complained. In other words, the employer must establish that it had an appropriate sexual harassment policy in place, but that the harassed employee unreasonably did not utilize the policy’s options for preventing or addressing harassment. The police department didn’t have that evidence in this case, so the trial court should not have thrown out the lieutenant’s case.

If you’ve been harmed by sexual harassment at work, don’t suffer in silence. Take action to protect yourself. The experienced New Jersey employment attorneys at Phillips & Associates have been helping victims of workplace harassment and discrimination for many years. Reach us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how we can help you.

More blog posts:

New Jersey Appellate Division Upholds $525K Verdict for a Customer Service Representative Who Was Sexually Harassed by Her Supervisor, New Jersey Employment Lawyer Blog, Aug. 7, 2018

What Can Be Learned from the Recent Allegations of an Extremely Hostile Work Environment in New Jersey, New Jersey Employment Lawyer Blog, May 25, 2018


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