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New Jersey Weighs Eliminating the ‘Severe or Pervasive’ Requirement of Harassment Law and Easing the Burden on Harmed Workers Who Sue

The law in New Jersey is frequently changing. One way changes occur is through case decisions by the Appellate Division court or the New Jersey Supreme Court. Another occurs when the state legislature decides that the law, as currently written, doesn’t reflect what the law should be, and enacts an amendment. These changes, whether via court ruling or legislative action, represent a key reason for having an experienced New Jersey employment lawyer on your side for your discrimination or harassment case. The right attorney can provide you with the benefit of both powerful legal experience and the most up-to-date knowledge of the law.

Back in 2019, one of those very important changes to statutory employment law occurred in New York. In October of that year, a critical amendment to that state’s Human Rights Law went into effect.

New York law, as modified by the 2019 bill, specifically says that “harassment need not be severe or pervasive in order for the employer to be liable.” This is a very substantial change that will make winning harassment cases much easier for harmed workers in New York in the future.

New Jersey may be set to follow in the Empire State’s footsteps. Currently pending in this state’s legislature is SB 3352. This bill, if it becomes law, would erect an extremely similar change to harassment law as what New York underwent in 2019.

Currently, in New Jersey (and in New York until 2019,) the law says that, for you to win your harassment case, you have to prove, not only that the harassment occurred, but also that it either happened so often as to be “pervasive” or was so bad that it constituted “severe” harassment.

The problem with that standard is the inherent subjectivity of those “pervasive” or “severe” terms. In some past federal cases (in other states), even uses of nooses and the n-word came up short in race-based claims and a supervisor’s unwelcome touching of a woman’s buttocks did not carry the day in a sexual harassment lawsuit.

What the Change Would Do to Help a Harassed Worker

Effectively, what the modified law in New York does (and SB 3352 would do in New Jersey) is to shift the burden of proof about the extent of the harassment from the worker to the employer. Instead of a harassed worker having to prove that the harassment happened and was severe or pervasive, the law would merely place upon the worker the burden of proving that harassment occurred.

The employer would have the option to assert an affirmative defense in the case that the harassment the worker asserted was just “petty slights or trivial inconveniences.” This means, in effect, that the employer has the burden of proving that the harassment was neither severe nor pervasive, but was relatively mild and infrequent.

Whether or not the New Jersey legislature will change the law and alter the requirements placed upon workplace sexual harassment victims for proving their cases in court remains unknown at this point. If you have been harmed by sexual harassment at work, you need a legal team prepared to succeed on your behalf whatever the state of the law is. Count on the knowledgeable sexual harassment attorneys at Phillips & Associates to provide you with both an in-depth and up-to-date knowledge of the law and the experience to put that knowledge to work effectively for you. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.

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