It Is New Jersey, But Business to Business Sex Harassment?

Although my NJ friends who do the same thing I do have been claiming for some time that the Garden State has surpassed California as the most employer hostile environment, I was still surprised to see this headline, Business-to-Business Sex Harassment? N.J. Court Says It's Real.

Actually, as is often true behind surprising cases, there was a healthy dose of creative lawyering. When the owner of J.T.'s Tire Service, Eileen Totorello felt she was losing a $29,000 a month account because she would not have a sexual relationship with the customer's manager, her lawyer, Elizabeth Zuckerman, brought a quid pro quo, sexual harassment suit under the section of the NJ Law Against Discrimination which makes it illegal to "refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person" on the basis of gender or other LAD-protected categories.

After the trial court dismissed the claim, J.T. Tires appealed. Among the defendant's arguments to the three judge panel was that female business owners did not need protection against sexual harassment, and that such a claim was viable only under the employment provision of the LAD, not the section prohibiting gender discrimination in business transactions.

Not so, according to Judge Susan Reisner, one of the two women on the three judge panel. The decision can be found here.

Not surprisingly, the defendant is considering an appeal. While I don't know much about the NJ Supreme Court, what little I do know, does not make me think it is highly likely that it will turn out differently.

Why I Am Not an Academician

Occasionally through the magic of the internet (and in this case the Freakonomics Blog) I run across a cite to an academic article that attracts my attention because it is related to employment law. Especially when they have great titles like — The Sexual Harassment of Uppity Women — by Jennifer Berdahl in the Journal of Applied Psychology. I click on it thinking I will get some tremendous insight and then ...

In 3 studies, the author tested 2 competing views of sexual harassment: (a) It is motivated primarily by sexual desire and, therefore, is directed at women who meet feminine ideals, and (b) it is motivated primarily by a desire to punish gender-role deviants and, therefore, is directed at women who violate feminine ideals. Study 1 included male and female college students (N ! 175) and showed that women with relatively masculine personalities (e.g., assertive, dominant, and independent) experienced the most sexual harassment. Study 2 (N ! 134) showed that this effect was not because women with relatively masculine personalities were more likely than others to negatively evaluate potentially harassing scenarios. Study 3 included male and female employees at 5 organizations (N ! 238) and showed that women in male-dominated organizations were harassed more than women in female-dominated organizations, and that women in male-dominated organizations who had relatively masculine personalities were sexually harassed the most.

and I am reminded why I need to stick to law.

And for those of you who like me are a little stumped by the abstract, here's the the summary that caught my attention (courtesy of Melissa Lafsky):

Contrary to the conventional belief that a woman’s acting “feminine” in the workplace leads to sexual harassment, just the opposite may be true. Berdahl’s paper concluded that women who “act like men” are more likely to experience harassment, possibly because of the conduct’s use as a tool to reinforce traditional gender roles.

My experience in defending sexual harassment cases doesn't necessarily bear that point out, although I definitely do agree that sexual harassment of women is worse in male dominated industries.