New Jersey Employment Lawyer Blog
If your supervisor at work demands that you give him sexual favors or else lose your job, and you report that harassment to your employer and your employer does nothing to the offender, then you may know that you can go to court against both your employer and the supervisor. But, what if the harasser is someone who isn’t employed by your employer? Does that difference mean that you have no case? The answer is no, it does not mean that. Depending on the facts of your case, you may still have options. One option to which you definitely should avail yourself is reaching out to an experienced New Jersey employment attorney about your situation.
A recent federal case from neighboring Pennsylvania (Hewitt v. BS Transportation of Illinois, Civ. No. 18-712) tackled this issue of harassment by non-employees. C.H., the allegedly victimized employee, worked as a freight driver for a transportation company. The alleged problems started in 2014, beginning with sexual advances by an employee of a client. Allegedly, the harassment included both sexual comments and gestures and eventually escalated to becoming physical, with the harasser grabbing the driver “by the buttocks with one hand and shoving” him against a freight car.
According to the driver’s lawsuit, he reported the assault. Allegedly, C.H.’s own supervisor told that the matter would be handled, but no action was ever taken against the harasser.
C.H. didn’t just sue the client and the harasser. He also sued his own employer. The employer asked the trial court to dismiss the case, but the trial court ruled against the employer.
The law only required proof that the employer knew or should have known
The trial court’s decision is an important in potentially expanding the range of circumstances in which a harassed or discriminated employee can seek compensation. The alleged harasser in this case was not an employee of the employer, but the court stated that this, alone, did not prevent the driver from succeeding. If the driver could show that “the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action,” then the harmed employee can win his case against his employer. The court went on to explain that “knows or should have known” in the context of sexual harassment, means that “management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment.”
That seems to fit closely with what C.H. alleged. The driver told an employee of the client about the harassment and that person told C.H.’s supervisor (who also happened to be the owner of the transportation company), according to the driver. Yet, in spite of assurances that the matter was handled, nothing was done, the driver alleged. If proven true, this could amount to a winning case.
C.H.’s case is proceeding in the federal court for the Eastern District of Pennsylvania, but it could have a major impact on New Jersey workers who are harmed by sexual harassment or discrimination and who sue in federal court. If the case makes its way up to the Third Circuit Court of Appeals and that court rules in the driver’s favor, then that ruling would control future federal cases in New Jersey, meaning that Garden State workers would have a clearer path to winning these kinds of cases where they are harmed by someone who isn’t an employee of their employer.
Options also available under the Law Against Discrimination
If this happened in New Jersey, the victim would have more options, including a plausible case under the Law Against Discrimination. Back in 1996, the Appellate Division court issued a ruling in which it determined that the federal regulatory standard applied, meaning that if the employer knew or should have known, but failed to take immediate and appropriate corrective action, then the victim has a potential case against the employer.
If you’ve been sexually harassed in the performance of your job, don’t suffer in silence. Contact the skilled New Jersey employment attorneys at Phillips & Associates to learn more about how we can help. Reach us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out what we can do to get you what you deserve.