Not all sexual harassment occurs in the workplace. Professors and others in supervisory positions over students abuse their power and engage in sexual harassment.
Students are particularly vulnerable because they are not always aware of the resources available to them, and are oftentimes living on their own for the first time in their lives.
We are all familiar with “discrimination,” but legal discrimination – that is, discrimination that may be proved legally – is something different. By law, a person “discriminates” against another when they treat that person differently, or less favorably, for a reason that has obtained formal, legal protections. Discrimination can occur while you are at school, at work, or in a public place, such as a mall or subway station. You can be discriminated against by school friends, teachers, coaches, co-workers, managers, or business owners.
In New Jersey, for example, the Law Against Discrimination (“LAD”) prohibits discrimination and harassment based on actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability and other protected characteristics. The law applies equally to matters of employment, housing and places of public accommodation, including any place open to the public, such as businesses, restaurants, schools, summer camps and medical providers, to name just a few.
With regard to employment, it is unlawful for an employer to fire someone, pay someone less money, or refuse to hire or promote someone because of their race, gender, national origin, sexual orientation and so on. Similarly, a housing provider cannot refuse to rent an apartment to a couple because of their race, gender, sexual orientation, national origin, and so forth. Nor can a place of public accommodation refuse to serve a patron due to the patron’s race, religion, sexual orientation and so on.
It is also worth noting that the LAD also prohibits bias-based harassment, which means, if a person is being subjected to the type of harassment that creates a hostile environment, that person’s employer, housing provider, or place of public accommodation must take reasonable steps to stop the harassment – assuming they’ve been placed on notice of same – or be exposed to liability for permitting a hostile work environment and/or sexual and other harassment to persist. This category of injury includes, for example, harassment between coworkers, tenants or patrons – not just harassment by a landlord or by a supervisor at work.
The LAD also prohibits “quid pro quo” sexual harassment, which occurs when a person in a position of power demands sex or sexual favors in exchange for favorable treatment, such as continued employment or a promotion. This kind of harassment was first popularized in 2006 by the original founder of the #MeToo Movement, when a social activist by the name of Tarana Burke began using the phrase “Me Too” on her MySpace social media platform. Contending on the behalf of women of color primarily, Ms. Burke argued that the Me Too movement sought empowerment through empathy, and in particular by showing the world just how common sexual harassment is, and by showing survivors that they are not alone, and will finally be supported. The movement became very prominent in 2017 when several high-profile actresses opened up about their experiences with sexual harassment in the film industry – many such claims involving sexual harassment at the hands of well-known film producer Harvey Weinstein.
Of further note, the LAD also prohibits retaliation against a person who comes forward to complain about discrimination or harassment, or otherwise exercises (or attempts to exercise) his or her rights under the law. Consequently, an employer cannot fire someone for reporting sexual harassment to human resources. Nor can a housing provider evict someone for reporting housing discrimination.
The New Jersey Division on Civil Rights (“DCR”) enforces the LAD and is tasked with preventing and eliminating discrimination and harassment in New Jersey. Anyone who believes their rights under the LAD have been violated may file a complaint with DCR within 180 days of the incident.
Another prominent group, the Equal Employment Opportunity Commission (“EEOC”), is expressly responsible for protecting members of the public from employment discrimination based on race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older) and/or genetic information. According to the EEOC, sexual harassment consists of “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.” Sexual assault, which is another form of sexual harassment, is also included among the unlawful behavior.
Like the LAD, the laws enforced by EEOC protect individuals from employment discrimination that involves disparate or unfair treatment due to race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information; harassment by managers, co-workers or others in your workplace due to race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information; denial of a reasonable workplace change which is needed because of one’s religious beliefs or disability; improper questions about or disclosure of one’s genetic or medical information; and retaliation in response to a complaint about alleged discrimination.
According to the Rape, Abuse, and Incest National Network (RAINN), millions of Americans have been affected by sexual violence, with women and young girls accounting for the most frequent victims. Indeed, 82% of all juvenile victims of sexual assault are female, while 90% of adult rape victims are female.
According to the National Women’s Law Center, African American women experience sexual harassment in the workplace at nearly three times the rate of Caucasian women. Native Americans are also twice as likely to experience sexual assault compared to other races. According to a study by Pacific Standard Magazine, aggressors who commit sexual deviance increasingly target women of color due to a misguided notion of power, or the idea that women of color are less willing to report their abuser’s misdeeds. For example, an assailant may target an undocumented immigrant, assuming the individual is too afraid of the risk of deportation to report the crime.
Of course, not all sexual harassment occurs in the workplace. It is possible for a professor or someone else in a position of power over students to abuse that power and engage in sexual harassment. Students are particularly vulnerable because they are not always aware of the resources available to them to pursue justice against their abuser, since oftentimes these students are living on their own for the first time.
Moreover, it is now known and reported that transgender people (and especially students) suffer higher rates of sexual violence than their cisgender peers – some 47% report being sexually assaulted at some point in their lives. In addition, 44% of gay women and 61% of bisexual women have suffered sexual violence or stalking by an intimate partner, versus only 35% of heterosexual women who have experienced the same. Further, 46% of bisexual women have been raped, compared to 17% of heterosexual women.
The Human Rights Campaign has found that members of the LGBTQ+ community are not only more likely to suffer sexual harassment and violence, but they are also less likely to seek support or to notify law enforcement of an instance of sexual violence committed against them out of fear of discrimination from police, hospitals and even rape crisis centers.
Unfortunately, most do not realize or appreciate the fact that 94% of women (nearly 100 %) who have been raped also experience post-traumatic stress disorder following the incident. Furthermore, 70% of all sexual assault victims experience moderate to severe mental and emotional distress, which is more than the victims of any other violent crime.
It should also be noted that men are not immune from sexual harassment and sexual violence. Although less likely to suffer from sexual violence, millions of men each year are the victims of sexual assault. Note, however, that sometimes sexual violence against men is ignored altogether because male victims of sexual assault are discouraged from reporting what has happened to them, out of embarrassment, humiliation and/or fear of being told they are not masculine.
If you feel that you, or someone you know, can benefit from speaking with an attorney about a potential discrimination or harassment claim, or if you would simply like more information, please contact us immediately. Our firm is wholly dedicated to helping those who have been victimized by the discriminatory and insidiously harassing actions of others. With zeal, experience, commitment and a long tradition of excellence in providing top notch legal representation for the injured, the Law Office of Todd Drayton will fight to champion a just resolution on your behalf.
