In Bobowicz v. Holy Name Medical Center, Inc., 2023 WL 2579058 (N.J.Super.A.D. March 21, 2023), the court affirmed the dismissal of plaintiff’s sexual harassment claim.
From the decision:
Plaintiffs assert this case is subject to the Lehmann standard, which concerns sexual harassment that creates a hostile work environment. Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 603-04 (1993). Such a claim encompasses allegations of “conduct that occurred because of [a plaintiff’s] sex and that a reasonable [individual] would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment.” The conduct must also be unwelcome. [See] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (“[T]he fact that sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’ ”). “[A] consensual sexual relationship between employees negates the elements of a hostile environment sexual harassment claim.”
Plaintiffs urge us to apply this standard through the lens of Rios v. Meda Pharm., Inc., 247 N.J. 1 (2021). However, reliance on Rios is misplaced here. Rios restates and applies the standard enunciated in Lehmann in that it requires “an objective rather than a subjective viewpoint because the purpose of the LAD is to eliminate real discrimination and harassment.” Objectively, a consensual relationship is not discriminatory, nor does it constitute harassment. The trial court used the proper standard and viewed Hesquijarosa’s conduct objectively to determine that appellants failed to establish severe and pervasive conduct.
Kerlly never complained about Hesquijarosa’s conduct while the affair was ongoing. She pursued Hesquijarosa until she was fired. Indeed, Kerlly averred that at the time Gonzalez transferred her, she was still interested in continuing her relationship with Hesquijarosa. Thus, there was no evidence of hostility in the parties’ relationship.
The court further held that plaintiffs failed to demonstrate retaliation, noting, inter alia, that while defendant knew of the affair, HR treated the matter as “a personal matter that now bled into the workplace” rather than as a claim for sexual harassment; plaintiff never filed a complaint with HR alleging sexual harassment (and thus did not engage in “protected activity known to the employer”); and that while plaintiff was transferred, this was in compliance with defendants’ “policy prohibiting a conflict of interest between employees in relations with one another.”