New Jersey Local Loses Appeal of Sexual Harassment Case

The N.J. Superior Court has ordered a new trial in a suit brought by three female construction workers who claimed they were sexually harassed by members of a rival union picketing their worksite. Reversing judgment for the Int’l Union of Operating Engineers Local 825 on the women’s state law claims, the state’s appeals court held that they should not have been required by the trial court to prove that the harassment was the proximate cause of an injury to them.

In their 1990 suit against Local 825 and two of its members, the three women, George Harms Construction Co. employees and United Steelworkers of Am. members, claimed they were sexually harassed by IUOE members each day as they entered and left their worksite in Morristown, N.J. Local 825 picketed the highway construction project over an 18-month period because of a dispute over a collective bargaining agreement.

In Apr. 1997, after two delaying appeals, the three testified they were subjected on a daily basis to obscene sexual language and gestures by the picketers. Although they said the experience was “degrading” and “humiliating,” none of the plaintiffs sought medical or psychological treatment, missed work, lost income or was treated differently by their employer or co-workers because of the harassment, according to court records.

The jury rejected two of the plaintiffs’ claims entirely, found in favor of one individual defendant (the other was dismissed by the court), and found that the union was liable for its pickets’ conduct toward one plaintiff, but that she could not be awarded damages because its violation of the N.J. Law Against Discrimination (LAD) had not caused her injury. Ruling on the plaintiffs’ post-trial motions, the trial court entered judgment for IUOE and denied attorneys’ fees for both parties.

The plaintiffs appealed, seeking a new trial on their claims against Local 825 only. IUOE cross-appealed the trial court’s failure to dismiss the suit on the merits and, alternatively, to rule that it is protected against liability for picket-line conduct under the First Amendment. On appeal, the Local 825 laughably argued that the plaintiffs’ suit is groundless because the picket-line conduct was directed at all Harms’ employees, regardless of gender.

The appeals court responded that while some of the picketers’ comments were not directed to a member of a specific sex, “it is abundantly clear that other comments were not gender-neutral but, in fact, were gender-based as being inapplicable to men and only applicable to women.” Whether the alleged conduct was “severe or pervasive,” is a factual determination to be made by the jury. It is not necessary that the plaintiffs show they experienced an adverse job action because of the harassment, rather the court said “[a] plaintiff in a sexual harassment action need only prove that the conduct complained of would make a reasonable woman believe that the conditions of employment had been altered to the extent that the workplace environment had become hostile or abusive.” The court noted that the evidence shows that the three women could meet this standard, given that they had never been subjected to sexually oriented taunting on the job until the IUOE began picketing.

The appeals court agreed with the plaintiffs that a new trial is warranted and that the trial court’s use of the “proximate cause” standard in the jury instructions and questionnaire “completely eviscerates the purpose of the LAD.” A plaintiff alleging a sexually hostile work environment must simply prove that the workplace was permeated with sexually discriminatory “intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment,” the court explained. A plaintiff is not also required to prove that “she was subjectively harmed to establish a LAD violation.” The appeal court further directed the trial court on retrial to allow evidence of all activities on the picket line to establish the union’s liability which may make IUOE liable for non-employees’ conduct if they “act[ed] for and on behalf of the union in furthering the ultimate goal of the labor activity,” the court held. [BNA 7/7/99]