Q: I read online that the Faragher-Ellerth defense requires me to work through any issues of sexual harassment with my
employer prior to suing them. What if it's someone in HR who's harassing me and I don't feel safe doing that though?
A: Not necessarily. The FE defense is for the employer to prove that they have the means in place to make a complaint but that does not mean that it precludes you from suing. In addition, that defense can be easily overcome in NY State law and NY City law against sexual harassment. You can make the complaint to your supervisor or anyone else. Consider a consultation for further discussion.
A: The same applies under NJ Law Against Discrimination (NJLAD) which is the state equivalent to the federal and NY laws. It’s meant to protect the employee.
A: You are correct that when an employer has an appropriate sexual harassment policy and investigation process and an employee does not follow the claim reporting process, employers will seek to raise the Faragher-Ellerth defense to attempt to avoid liability for the sexual harasser's conduct. However, there are exceptions that may apply. In your situation it is essential that you consult with an experienced employment lawyer who will be able to review the employer's policy and advise you as to how to navigate through the process to avoid a direct complaint to the harasser and protect your claim. We frequently represent victims of sexual harassment. Please feel free to contact our firm.
Your employer’s sexual harassment policy typically provides an alternative avenue to report the harassment, bypassing the person in HR who is harassing you. You should consult with an experienced New Jersey employment lawyer in this regard.
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