New Jersey Employment Lawyer Blog
Yesterday, the New Jersey Supreme Court ruled that a sexual assault against a student can constitute sexual harassment in violation of the New Jersey Law Against Discrimination (“LAD”).
In addition to prohibiting discrimination in the workplace, the LAD also prohibits it in places of public accommodation, including public schools and school busses. Sexual harassment is a form of discrimination that occurs because of the victim’s sex.
The case involved an individual identified only by her initials, C.V., who was a prekindergarten student in the Waterford Township School District. C.V. was the victim of repeated sexual assaults by her bus aide, Alfred Dean. Mr. Dean ultimately plead guilty to first-degree aggravated sexual assault, and was sentenced to 10 years in prison.
After they learned about the sexual assaults, C.V.’s parents filed a lawsuit on her behalf against the Waterford Township Board of Education and Waterford Township School District, alleging discrimination because of sex.
The trial court dismissed C.V.’s case, finding the assaults occurred because Mr. Dean was a “compulsive sexual predator, a pedophile” who supposedly abused both boys and girls. As a result, it concluded his actions were not because of sex. On appeal, New Jersey’s Appellate Division affirmed on the basis that there was no evidence that the assaults occurred solely because of C.V.’s gender.
However, on September 13, 2023, the New Jersey Supreme Court reversed the Appellate Division’s ruling and reinstated C.V.’s sexual harassment claim. In doing so, it relied heavily on a previous case, Lehmann v. Toys ‘R’ Us, which recognizes that harassment that is sexual in nature is inherently “because of sex.”
In C.V. v. Waterford Township Board of Education, the Supreme Court explained that, under Lehmann: “When the harassing conduct is sexual or sexist in nature, the but-for element will automatically be satisfied.” Accordingly, “when a plaintiff alleges that she has been subjected to sexual touchings . . . she has established that the harassment occurred because of her sex.” It is only when “the form of the harassment is not obviously based on the victim’s sex” that the victim has to prove “the harassment occurred because of her sex.” The Supreme Court made it clear this standard applies equally to harassment in the workplace and in places of public accommodation, since “sexual harassment is just as unacceptable in a school as it is in the workforce.”
The Supreme Court ruled that it is not a defense to a sexual harassment claim that sex was not the only reason for the harassment. Rather, the individual asserting the claim has to prove “but-for causation,” The Court explained that, since an act can have more than one but-for cause, if the plaintiff proves her “sex was one but-for cause,” the defendant cannot avoid liability by proving another factor contributed to him taking the action.
The Court also rejected the Appellate Division’s conclusion that C.V.’s case should be dismissed because Mr. Dean supposedly was motivated by pedophilia, but not necessarily by C.V.’s gender. It explained that, since the LAD is not a “fault-or intent-based statute,” it is unnecessary to prove Mr. Dean intended to harass C.V. because of her gender. Rather, “the perpetrator’s intent is simply not an element of” a claim under the LAD.
In addition, the Court noted that the Appellate Division improperly relied on Mr. Dean’s self-serving testimony that he had assaulted at least one boy to support his argument that his actions toward C.V. were not due to sex. It explained that, even if Mr. Dean had assaulted both girls and boys, that would not have been a defense since he would not have harassed C.V. but-for her sex.
Finally, the Supreme Court noted that neither of the parties asked it to determine when a school district can be liable for sexual harassment one of its employees commits toward a student. That remains an open issue of law to be decided in the future.