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Sexting, Supervisors, and Sexual Harassment Law in New Jersey

Modern technology – including smartphones – has fostered many wonderful advancements, including work-related ones. It also, however, has come with drawbacks. One is that many workers feel like they’re “on the clock” or “on-call” 24/7. Another is even more harmful – and that drawback regards sexual harassment. These days, a supervisor or coworker who seeks to harass likely can do it anywhere, anytime via your phone. Inappropriate comments, jokes, or images sent from a supervisor or coworker via texts, social media direct messages (“DMs”), or emails, can potentially make for a successful sexual harassment case, even if that activity happened in the hours outside work. If that’s happened to you, a knowledgeable New Jersey sexual harassment lawyer can provide you with customized advice based on your specific situation.

S.J. was allegedly one of those workers. She worked as a legal assistant for a very large law firm with offices in New York and New Jersey. One of the male attorneys at her office (in Morristown) allegedly sent her a lengthy array of inappropriate text messages. The texts, which allegedly numbered more than 100, included both verbal content (one message discussed kissing the woman’s intimate areas and another suggested that the pair engage in intercourse in the office of the woman’s boss) and visual content (a picture of the man’s private parts in a state of arousal.)

The woman eventually pursued a federal Title VII case for sexual harassment in the federal court for New Jersey. Very recently, the woman won an important battle to include a censored depiction of the man’s nude photo as an exhibit in her sexual harassment case, despite strong opposition from the employer, the ABA Journal reported.

The woman’s legal team argued to the court that, if the employer was “so aghast at the sight of” the man’s redacted genitals, “they should imagine how [S.J.] felt after [the man] sexted her several unredacted and unsolicited photos” of his naked body throughout the woman’s time at the law firm.

Reminders That You Can Take Away from This Case

S.J.’s case has some very useful reminders for anyone who has been harassed by a supervisor or coworker through private electronic correspondence. Firstly…

• Do NOT delete (or otherwise destroy) it!

Your first impulse probably is to hit ‘delete’ or your ‘trash’ icon as quickly as you can. Don’t do it. Without question, the content is revolting… whether it is sexual comments, a link to pornographic web content, or a picture of naked genitals, and while you almost certainly don’t ever want to have to see it again, that unsolicited text, DM, or email could be a crucial piece of evidence if you later need to pursue a sexual harassment case.

Federal law and New Jersey law say that the work-related harassment you endured must be severe or pervasive. Having a stark reminder of exactly what was pushed upon you without your consent may be a key element in establishing that what happened to you was severe, especially if it wasn’t something that occurred frequently (or, in other words, was “pervasive.”)


• Do NOT wait to contact legal counsel.

Perhaps you want to sue, or perhaps you don’t. Every person targeted by work-related sexual harassment has different needs. Whatever you plan to do – or, perhaps more specifically, whatever you think you plan to do at this juncture – don’t wait to talk to someone. You may plan, at this point, not to sue, but the harassment may worsen or your employer may later retaliate against you for attempting to talk to your harasser or making a complaint with HR. The sooner you talk to counsel, the more prepared you and your legal team will be if litigation becomes necessary.

In S.J.’s case, she actually brought many claims based upon the alleged harassment she suffered, but many of them were dismissed by the court because, under the relevant statutes of limitations, they were things she waited too long to pursue.


• Do NOT forget to include your harasser AND your employer in your lawsuit.

The law is clear that your employer can be liable for the sexual harassment perpetrated by your supervisor. When that happens, your employer can only escape liability if it can prove that “it reasonably tried to prevent and promptly correct the harassing behavior” and also that you “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.”

Even if the harasser was not your supervisor, you can still succeed if you can demonstrate that your employer “knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”

Being the target of workplace sexual harassment is undeniably incredibly trying and painful. There are potential legal ramifications of these events, but you also have to be mindful of your own self-care during this stressful time. Be sure to prioritize your own wellness and, while you’re at it, protect your rights by leaving the legal issues in the hands of professionals you can trust. Rely on the experienced New Jersey sexual harassment attorneys at Phillips & Associates to provide the thoughtful, personal, and powerful advocacy you and your case deserve. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.

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