“What Goes Around, Comes Around” – A Potential Defense to Hostile Work Environment Claims Under the NJ LAD

On November 7, 2019, the U.S. District Court for the District of New Jersey in Paige v. Atrion Communication Resources, Inc., et al., considered a hostile work environment/sexual harassment claim under the New Jersey Law Against Discrimination (NJLAD) by a receptionist who alleged she was constructively discharged as a result of her supervisor’s conduct. The District Court denied Atrion’s motion for summary judgment, holding that, with respect to the “severe and pervasive” prong of an NJLAD hostile work environment claim, there were genuine disputes of material facts regarding (1) whether the plaintiff’s supervisor engaged in the alleged conduct, and (2) whether the plaintiff herself engaged in sexually inappropriate conduct.

Facts

Veronica Paige was employed by Atrion, an IT consulting company, working primarily as a receptionist from 2007 to 2016. Paige alleged that throughout her time with Atrion, her supervisor subjected her to sexual harassment creating a hostile work environment. Paige left her employment in 2016 and claimed that she was constructively discharged as a result of the alleged hostile work environment. By way of example, Paige alleged that over the course of her employment, her supervisor engaged in the following activity:

• Showed her a pornographic video;
• Asked her for oral sex;
• Told Veronica she was only hired because she had large breasts;
• Suggested that Veronica and Pat have a threesome with Atrion’s human resources manager;
• Offered to have sex with Veronica on multiple occasions;
• Told Veronica that he had a banana for her that was “cream filled” and that he wanted to “shoot [her] with [his] banana;” and
• Rubbed Veronica’s shoulders “in an inappropriate fashion.”

Paige’s supervisor denied the allegations and, in turn, alleged that Paige made sexually explicit and racist comments at work.

District Court's Decision

Ruling on Atrion’s motion for summary judgment, the Court found that there were genuine issues of material fact for the “severe and pervasive” prong of an NJLAD hostile work environment claim. First, the Court held that there was a genuine dispute of fact regarding whether her supervisor engaged in the conduct alleged by Paige, which would be the basis for a jury’s finding of a “severe and pervasive” sexual harassment. Second, the Court found there was a genuine dispute of material fact regarding whether Paige made sexually inappropriate comments or engaged in racist behavior, which also factors into the “severe and pervasive” analysis.

Bottom Line

A hostile work environment claim under the NJLAD is analyzed under a “totality of the circumstances” standard. This decision suggests that when an employee is also engaging in sexually inappropriate conduct, a jury may conclude that the complained of sexual harassment is not “severe and pervasive” to constitute a hostile work environment and may have been “welcomed.” Although it goes without saying that supervisors should not engage in the type of conduct alleged in this case, Human Resources and Management must be trained to record similar conduct by non-supervisors. An employer may use that conduct against a non-supervisory employee to help mitigate against potential future claims of sexual harassment.

For more information regarding this decision and best practices for defending claims of harassment and discrimination, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group, or at 973-533-0777.