New Jersey-2020-A4892-Introduced

An Act concerning the submission of harassment and discrimination complaints by State workers, and supplementing Title 10 of the Revised Statues.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the "State Workplace Anti-Harassment and Discrimination Act."

2. a. As used in this act, P.L. , c. (C. ) (pending before the Legislature as this bill):

"Sexual harassment" means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

"State agency" means any of the principal departments in the Executive Branch of the State Government, and any division, board, bureau, office, commission, or other instrumentality within or created by such department, State colleges or universities, and any independent State authority, commission, instrumentality, or agency.

"Supervisor" means any individual of a State agency who has the authority to direct and control the work environment and performance of an employee, intern or volunteer, or any other staff member and who has authority to take corrective action regarding the violation of the law, rule, or regulation of which an employee, intern, or other staff member complains.

"Third-party harassment" means unwelcome behavior involving any of the protected categories referred to in subsection b. this section that is not directed at an individual but exists in the workplace and interferes with an individual's ability to do the individual's job.

b. It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination, for any person, whether an employee or applicant for employment, or intern or volunteer, in any State agency or Gubernatorial Transition Office, or person doing business with the State to discriminate against or harass an employee or applicant for employment, or intern or volunteer, based upon the following protected categories: race, creed, color, national origin, nationality, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, pregnancy, marital status, civil union status, domestic partnership status, familial status, religion, atypical hereditary cellular or blood trait, genetic information, liability for service in the Armed Forces of the United States, or disability.

Any conduct in violation of this act shall be prohibited.

A State agency shall take either disciplinary action, if appropriate, or other corrective action, to address any conduct that violates this act, regardless of whether the conduct satisfies the legal definition of discrimination or harassment. A disciplinary or corrective action shall focus on any person who violates this act rather than the complainant, whenever possible.

c. The following actions shall be prohibited under this act:

(1) engaging in any employment practice or procedure that treats an individual less favorably based upon any of the protected categories referred to in subsection b. of this section;

(2) using derogatory or demeaning references regarding any of the protected categories set forth in subsection b. of this section; and

(3) engaging in sexual or gender-based harassment of any kind, including hostile work environment harassment, quid pro quo harassment, or same-sex harassment.

d. The provisions of this act shall apply to the following:

(1) third-party harassment;

(2) conduct that occurs in the workplace and conduct that occurs at any location that can be reasonably regarded as an extension of the workplace, including but not limited to, any field location, off-site business-related social function, or facility where State business is being conducted and discussed;

(3) posts on any social media site or electronic device, personal or business, that adversely affects an individual's work environment; and

(4) employment practices such as recruitment, selection, hiring, training, promotion, advancement appointment, transfer, assignment, layoff, return from layoff, termination, demotion, discipline, compensation, fringe benefits, working conditions, and career development.

3. a. Any employee or applicant for employment, or intern or volunteer, who has been subjected to any form of prohibited discrimination or harassment, or who witnesses others being subjected to such discrimination or harassment, may promptly report the incident to a supervisor or directly to the State agency's Equal Employment Opportunity and Affirmative Action Officer, or any other designated officer. A person who wishes to take action about prohibited discrimination or harassment may file a criminal complaint with the law enforcement agency of the municipality where the incident occurred. A person may make both a report to a law enforcement agency and a report to the individual's supervisor or the State agency's Equal Employment Opportunity and Affirmative Action Officer.

All employees shall cooperate with investigations undertaken pursuant to this act. Failure to cooperate in an investigation may result in administrative and disciplinary action, up to and including the termination of employment. A complainant may withdraw from a discrimination or harassment complaint at any time and shall not face any disciplinary actions for that withdrawal.

b. Supervisors shall make every effort to maintain a work environment that is free from any form of prohibited discrimination or harassment. Supervisors shall immediately refer allegations of prohibited discrimination or harassment to the State agency's Equal Employment Opportunity and Affirmative Action Officer, or any other designated officer. A supervisor's failure to comply with these requirements may result in administrative and disciplinary action, up to and including the termination of employment.

c. Each State agency shall annually distribute the provisions described in this act, or a summarized notice thereof, to all of its employees, including part-time and seasonal employees and interns. This act, or a summarized notice thereof, shall be posted in conspicuous locations throughout the buildings and grounds of each State agency and on the State agency's Intranet site if one exists. The Department of the Treasury shall distribute this act, or a summarized notice thereof, to State vendors and contractors and each State agency shall distribute this act, or a summarized notice thereof, to vendors and contractors with whom the State agency has a direct relationship.

4. a. Each State agency shall follow the procedures adopted by the Civil Service Commission for processing internal complaints alleging discrimination or harassment in the workplace with regard to reporting, investigating, and where appropriate, remediating claims of discrimination or harassment pursuant to this section. The procedures for internal complaints alleging discrimination or harassment in the workplace shall include, but need not be limited to, the following:

(1) Complaints of prohibited discrimination or harassment shall be reported to the Equal Employment Opportunity and Affirmative Action Officer, any supervisory employee of the State agency, or any other designated officer. The names and titles of the individuals designated to receive discrimination or harassment complaints shall be listed on any materials informing employees or applicants for employment of this act. To facilitate the reporting of a complaint, discrimination and harassment complaint forms shall be listed on the State agency's Intranet site if one exists, or the Civil Service Commission's Internet site.

(2) Supervisory employees shall immediately report all alleged violations of this act to the State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee. The report shall include both alleged violations reported to a supervisor, and those alleged violations directly observed by the supervisor.

(3) If reporting a complaint to any person set forth in this section presents a conflict of interest, the complaint may be filed directly with the Division of Equal Employment Opportunity and Affirmative Action. Each State agency shall adopt a conflict of interest policy that, at a minimum, describes the polices and procedures in which a supervisor or investigator or other individual who participates in any discrimination or harassment complaint investigation shall recuse themselves due to a conflict of interest.

(4) In order to facilitate a prompt, thorough, and impartial investigation, all complainants shall submit a discrimination and harassment complaint form. An investigation may be conducted whether or not the form is submitted.

(5) A copy of all complaints, regardless of the format in which submitted, shall be submitted to the Division of Equal Employment Opportunity and Affirmative Action, by the State agency's Equal Employment Opportunity and Affirmative Action Officer, along with a copy of the acknowledgement letters sent to the persons who filed the complaint and, if applicable, the complaint notification letter sent to the persons against whom the complaint has been filed.

If a written complaint has not been filed, the State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, shall submit to the Division of Equal Employment Opportunity and Affirmative Action a brief summary of the allegations. Copies of complaints filed with the New Jersey Division on Civil Rights, the United States Equal Employment Opportunity Commission, or in court shall be submitted also to the Division of Equal Employment Opportunity and Affirmative Action.

(6) During the initial intake of a complaint, the State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, shall obtain information regarding the complaint, and determine if interim corrective measures are necessary to prevent continued violations of this act.

(7) The State agency shall investigate all reasonable and good faith complaints that implicate this act. The State agency shall conduct a prompt, thorough, and impartial investigation into the alleged harassment or discrimination.

(8) An investigative report shall be prepared by the State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, when the investigation is completed. The report shall include, at a minimum, a summary of the complaint; a summary of the employee's positions; a summary of the facts developed though the investigation; and an analysis of the allegations and the facts. The State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, shall make a determination as to whether the allegation of this act has been substantiated. If a violation has occurred, the head of the State agency shall execute the appropriate corrective measures necessary, as determined by the State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, to immediately remedy the violation.

(9) The State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, shall issue a final letter of determination to both the complainant and the person against whom the complaint was filed, setting forth the results of the investigation and the right of appeal to the Civil Service Commission as set forth in paragraphs (11) through (14) of this subsection. To the extent possible, the privacy of all employees involved in the process shall be maintained in the final letter of determination. The Division of Equal Employment Opportunity and Affirmative Action shall be furnished with a copy of the final letter of determination. The letter shall include, at a minimum, a brief summary of the employee's positions; a brief summary of the facts developed during the investigation; and an explanation of the determination, which shall include whether the allegations were either substantiated and whether a violation of this act occurred.

(10) The investigation of a complaint shall be completed and a final letter of determination shall be issued as soon as practicable, but no later than 60 days following the initial intake of the complaint referred to in paragraphs (4) through (7) of this section is completed. The head of the State agency, or that person's designee, shall provide the Division of Equal Employment Opportunity and Affirmative Action and all employee's involved with written notice of any extension and shall include in the notice an explanation of the exceptional circumstances supporting the extension.

(11) A complainant who is in the career, unclassified, or senior executive service, or who is an applicant for employment, who disagrees with the final determination of the State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, may submit a written appeal, within 20 days of the receipt of the final letter of determination, to the Civil Service Commission. The appeal shall be in writing and shall include all materials presented by the complainant at the State agency level, the final letter of determination, the reason for the appeal, and the specific relief requested.

(12) Employees filing appeals that raise issues for which there is another specific appeal procedure shall utilize those procedures. The commission may require any appeal that raises issues of alleged discrimination or harassment and other issues, such as examination appeals, to be processed using the procedures set forth in this section or a combination of procedures as the commission deems appropriate.

(13) If an appeal under this act raises issues concerning the employee not receiving an advancement appointment, the commission shall decide those issues in the course of its determination. The Civil Service Commission shall decide the appeal on a review of the written record or such other proceeding as the commission deems appropriate. The appellant shall have the burden of proof in all discrimination or harassment appeals brought before the Civil Service Commission.

(14) In a case where a violation has been substantiated, and no disciplinary action recommended, the party or parties against whom the complaint was filed may appeal the determination to the Civil Service Commission within 20 days of receipt of the final letter of determination by State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee. The burden of proof shall be on the appellant. The appeal shall be in writing and include the final letter of determination, the reason for the appeal, and the specific relief requested. If disciplinary action has been recommended in the final letter of determination, any party charged who is in the career service may appeal using the procedures set forth by the Civil Service Commission.

(15) The Director of the Division of Equal Employment Opportunity and Affirmative Action shall be placed on notice of, and given the opportunity to submit comment on, appeals filed with the Civil Service Commission of decisions on discrimination or harassment complaints, regardless of whether the complaint was initially filed directly with the Division of Equal Employment Opportunity and Affirmative Action.

(16) Any employee or applicant for employment, or intern or volunteer, may file a complaint directly with other agencies that investigate discrimination or harassment claims, such as the New Jersey Division on Civil Rights and the United States Equal Employment Opportunity Commission, in addition to utilizing this procedure. An individual shall contact the specific agency to obtain exact timeframes for filing a complaint. The deadlines shall run from the date of the last incident of alleged discrimination or harassment, not from the date that the final letter of determination is issued by the State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee.

b. In addition to the State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, each State agency shall designate alternate persons to receive claims of discrimination or harassment. The State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, shall investigate such complaints, and recommend appropriate remediation of such complaints.

All complaints and investigations involving discrimination or harassment claims shall be handled, to the extent possible, in a way that respects the privacy interests of all persons involved in that complaint or investigation. The investigations shall be conducted in a prompt, thorough, and impartial manner. The results of the investigations shall be forwarded to the respective head of the State agency.

c. When a violation of this act is found to have occurred, the head of the State agency shall take prompt and corrective action, as determined by the Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, to stop the behavior and deter its reoccurrence. The State agency shall have the authority to take such action before a final determination has been made regarding whether a violation of this act has occurred. The corrective action taken may include counseling, training, intervention, mediation, the separation of persons involved, the initiation of disciplinary action up to and including the termination of employment, or the involvement of law enforcement, when appropriate, for instances involving bodily harm or serious bodily harm. Any corrective action that requires the participation of the complainant shall not be implemented without the consent of that complainant. The case may also be referred to any other appropriate authority for review for possible violations of State and federal statutes.

d. Each State agency shall implement and adhere to the procedures provided in this section, and may add additional provisions to reflect the structure of the organization, and shall file a copy of the completed procedure with the Division of Equal Employment Opportunity and Affirmative Action.

5. a. Each State agency shall maintain a written record of the discrimination or harassment complaints received. Written records, consisting of the investigative report and any attachments, including witness statements, shall be maintained as confidential records to the extent practicable and appropriate and shall remain so indefinitely.

b. Retaliation against any employee or applicant for employment, or intern or volunteer, who alleges that the employee or applicant, or intern or volunteer, was the victim of discrimination or harassment, provides information in the course of an investigation into claims of discrimination or harassment in the workplace, or opposes a discriminatory practice shall be prohibited. No employee or applicant for employment, or intern or volunteer, bringing a complaint, providing information for an investigation, or testifying in any proceeding under this act shall be subjected to adverse employment or internship consequences based upon such involvement or be the subject of other retaliation.

c. The burden shall be on the complainant to articulate a sufficient nexus between the alleged conduct and a protected category pursuant to this act. An employee or applicant for employment, or intern or volunteer, who knowingly makes a false accusation of prohibited discrimination or harassment, or knowingly provides false information in the course of an investigation of a complaint, shall be subjected to administrative or disciplinary action, up to and including the termination of employment. Complaints made in good faith, even if found to be unsubstantiated, shall not be considered a false accusation.

6. To the extent practical and appropriate under the circumstances, confidentiality shall be maintained throughout the investigative process. An investigator may discuss the claims with the persons against whom the complaint was filed and with other persons who may have relevant knowledge, or who have a legitimate need to know about the claims.

All persons interviewed, including complainants and witnesses, shall be asked to use discretion in communicating any aspect of the investigation to avoid interfering with the investigation.

All complainants shall be permitted to be accompanied with a support person or advisor of their choice to any meeting or interview that is conducted under this act. A support person or advisor shall not represent a complainant in a meeting or interview or otherwise interfere in the investigation process.

Nothing in this section shall be interpreted as any restriction upon any State employee's rights under State or federal law, including their right of free speech or to communicate any allegations to another person.

Each State agency shall notify in writing any State employee who has signed or signs confidentiality forms related to, or as a party to a contract or settlement agreement which has, the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment that such forms, contracts, and agreements are deemed to be against public policy and unenforceable pursuant to sections 1 and 2 of P.L.2019, c.39 (C.10:5-12.7 and C.10:5-12.8), respectively.

7. The State agency's Equal Employment Opportunity and Affirmative Action Officer, or that person's designee, shall issue an annual report, which shall include, but need not be limited to, information on the total number of discrimination or harassment complaints filed at that State agency, the number of complaints that were substantiated, the number of disciplinary or corrective actions taken, and the number of complaints that resulted in any legal actions against that State agency. The State agency shall make the report available to the public through the Internet site of that State agency.

8. A State agency shall provide all new employees with training on the provisions and procedures set forth in this act no later than 30 days after the employee's appointment date and at least once every two years, thereafter. Additional training shall be provided to all supervisors no later than 30 days after the supervisor's appointment date and at least once every two years, thereafter, regarding their obligations and duties and the procedures as set forth under this act.

Certification of completion of such training for all employees and supervisors shall be submitted to the head of the State agency and shall be public information.

9. This act shall take effect immediately.

STATEMENT

This bill codifies the New Jersey Workplace and Anti-harassment and Discrimination Policy (N.J.A.C.4A:7-3.1), including the model procedures for internal complaints alleging discrimination in the workplace (N.J.A.C.4A:7-3.2).

Under the bill, it is an unlawful employment practice, or, as the case may be, an unlawful discrimination, for any person, whether an employee or applicant for employment, or intern or volunteer, in any State agency or Gubernatorial Transition Office, or person doing business with the State to discriminate against or harass another employee based upon protected categories. Under the bill, the State agencies may reserve the right to take either disciplinary action, if appropriate, or other corrective action, to address any unacceptable conduct that violates the provisions in the bill, regardless of whether the conduct satisfies the legal definition of discrimination or harassment.

Under the bill, the following actions are prohibited:

(1) engaging in any employment practice or procedure that treats an individual less favorably based upon any of the protected categories referred to in the bill;

(2) using derogatory or demeaning references regarding any of the protected categories set forth in the bill; and

(3) engaging in sexual or gender-based harassment of any kind, including hostile work environment harassment, quid pro quo harassment, or same-sex harassment.

Additionally, the provisions of the bill apply to the following:

(1) third-party harassment;

(2) conduct that occurs in the workplace and conduct that occurs at any location that can be reasonably regarded as an extension of the workplace;

(3) posts on any social media site or electronic device, personal or business, that adversely affect an individual's work environment; and

Each State agency, under the bill, is required to:

(1) implement the procedures provided in this bill and file a copy of the procedure with the Division of Equal Employment Opportunity and Affirmative Action;

(2) maintain a written record of the discrimination or harassment complaints received. Written records, consisting of the investigative report and any attachments, including witness statements, would be required to be maintained as confidential records to the extent practicable and appropriate and would remain so indefinitely;

(3) notify in writing any State employee who has signed or signs confidentiality forms related to, or as a party to a contract or settlement agreement which has, the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment that such forms, contracts, and agreements are deemed to be against public policy and unenforceable; and

(4) provide all new employees with training on the provisions and procedures.

Under the bill, employees and supervisors must go through additional training on the provisions of this bill at least once every two years. Certification of completion of the training for all employees and supervisors must be submitted to the head of the State agency and would be public information.

The State agency's Equal Employment Opportunity and Affirmative Action Officer would also be required to issue an annual report, which must include, but need not be limited to, information on the total number of discrimination or harassment complaints filed at that State agency, the number of complaints that were substantiated, the number of disciplinary or corrective actions taken, and the number of complaints that resulted in any legal actions against that State agency. The report must be made available to the public through the Internet site of that State agency.

As used in this bill: