210 New Road, Suite 12 | Linwood, New Jersey 08221
Businesses operate under an umbrella of state and federal laws that protect employees from harassment and discrimination in the workplace. While these laws indeed help employees who are victims of legitimate harassment and discrimination, they are often unfairly weaponized by disgruntled or otherwise unsatisfied workers. Fortunately, in cases of hostile work environment allegations, employers can mount a viable defense based on the totality of the circumstances.
In Paige v. Atrion Communication Resources, Inc., the U.S. District Court for the District of New Jersey considered a hostile work environment claim under the New Jersey Law Against Discrimination (NJLAD). The claim was brought by a receptionist, Veronica Paige, who alleged that she was subjected to years of sexual comments, innuendos and advances by the owner of the company. Eventually, Paige left the job, saying her boss’s conduct was so bad that it amounted to constructive discharge.
In considering Paige’s motion for summary judgment, the court noted that the NJLAD requires a plaintiff claiming a hostile workplace to establish that the employer’s conduct was “severe and pervasive.” This requires an analysis of the totality of the circumstances, which includes examination of the frequency of the alleged conduct, its seriousness, whether it is threatening or humiliating and whether it interferes with the employee’s work performance.
Also to be considered are the employee’s own actions. In arguing against summary judgment, the company alleged instances when Paige herself had engaged in sexually inappropriate conduct. For example, Paige had talked to her boss — the one she said harassed her — about the size of her ex-husband’s penis, had talked about her sexual preferences and had worn revealing clothing at work.
Atrion’s lawyers argued that the employer’s sexual harassment could not be severe and pervasive because Paige herself engaged in sexually charged conduct. The judge then factored Paige’s behavior in as part of the totality of the circumstances surrounding the case. Because whether Paige made sexually inappropriate comments was a genuine issue of material fact, she was not entitled to summary judgment, the court held.
Eventually the Paige case was settled before trial. But while the case was never ultimately decided on its merits, the summary judgment ruling illustrates a plausible defense for employers. If the complaining employee was also engaged in sexually inappropriate conduct, it is reasonable to conclude that the alleged sexual harassment was not severe or pervasive enough to constitute a hostile work environment.
The lawyers at Barker, Gelfand, James & Sarvas, P.C., represent employers throughout New Jersey in defending against sexual harassment and discrimination claims. Call our Linwood office at 609-601-8677 or contact us online to arrange a consultation.
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Barker, Gelfand, James & Sarvas, P.C. is located in Linwood, NJ and serves clients in and around Linwood, Somers Point, Ventnor City, Margate City, Northfield, Egg Harbor Township, Atlantic City, Pleasantville, Absecon, Pomona, Oceanville, Mays Landing, Egg Harbor City, Port Republic, Brigantine, Longport, We also serve Atlantic, Cape May, Gloucester, Cumberland and Camden counties.
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