Discrimination and Harassment
February 26, 2020
New Jersey Governor Phil Murphy recently announced proposed legislation that would overhaul the state’s anti-discrimination and anti-harassment laws. Among the changes that would effect NJ employers is a requirement to provide interactive training on preventing unlawful discrimination and harassment, including sexual harassment.
The legislation is similar to state and local laws in New York, New York City, California, Connecticut, Illinois, Maine and Delaware that seek to change workplace cultures and prevent sexual harassment and other forms of discrimination. New Jersey’s proposed bill would go into effect one year after being enacted.
Mandatory Training for All Employees
Under the new bill —
- All new employees must be trained within 90 days of initial hire;
- All employees must be trained at least once every two years;
- Supervisory employees must be trained on additional topics, including —
- Their specific responsibilities for preventing discrimination and harassment and the prohibitions against retaliation;
- Employers must review their training at least annually to ensure continued compliance with the law; and
- Employers must keep training records for at least three years.
The bill specifies that at a minimum, the training should include:
- A statement that unlawful discrimination or harassment in the workplace will not be tolerated and is considered a form of employee misconduct;
- A statement that sanctions will be enforced against individuals engaging in discrimination or harassment and against supervisor and managers who knowingly allow such behavior to continue;
- A definition of unlawful discrimination and unlawful harassment in employment;
- Examples of discriminatory and harassing behaviors;
- A description of the process for filing internal complaints about discrimination or harassment;
- Directions on how to contact the New Jersey Division of Civil Rights if a person believes their rights were violated;
- A description of the prohibition on retaliation against those who disclose, report, participate in an investigation of, or otherwise challenge such discrimination or harassment;
- Examples of retaliatory behaviors prohibited by the nondiscrimination policy;
- Information about bystander intervention.
Proposal Overhauls Law Against Discrimination
The proposed legislation follows a report by the Division on Civil Rights based on a year-long review of the state’s discrimination laws. Highlights of the amendments to New Jersey’s Law Against Discrimination (LAD) include:
- Hostile work environment standard: The legislation codifies the judicial “severe or pervasive” standard for establishing a hostile work environment, as well as clarifies that a single incident can create a hostile work environment and that harassment does not require physical touching.
- Mandatory anti-discrimination and harassment policy: All employers must adopt a written non-discrimination policy establishing policies and procedures concerning unlawful workplace discrimination and harassment, including sexual harassment.
- Employer liability: An employer is liable for unlawful harassment engaged in by either employees or non-employees (including vendors, suppliers, customers, clients and patrons) if “the entity, or its agents or supervisors, knew or should have known of the harassing conduct and failed to take appropriate preventive or corrective action.” However, for cases involving the acts of non-employees, “consideration shall be given to the extent of the entity’s control and any other responsibility that the entity may have with respect to the conduct of those non-employees.”
- Mandatory reporting: Employers with 50 or more employees must collect data on complaints received regarding unlawful workplace discrimination or harassment, including sexual harassment, and report such data to the DCR annually.
- Longer statute of limitations: The statute of limitations for LAD cases is lengthened from two years to three years and the statute of limitations for filing a complaint with DCR is extended from 180 days to one year.
- Broader definition of employee: Domestic workers and unpaid interns are now employees protected by the LAD. Domestic workers are included for the purposes of claims under the act, but training is not required at this time.
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Following the national trend spurred by the #MeToo movement, New Jersey’s Governor Murphy has proposed legislation to strengthen the state’s laws against workplace harassment and discrimination. Under the proposed law, organizations would be required to train all employees on preventing discrimination and harassment at least once every two years, and new employees within 90 days of hire. While the bill goes through the legislative process, NJ organizations may want to take proactive steps now to review policies and procedures and consider new training models that are more interactive, relevant and effective for today’s modern workforce.