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Plaintiffs in hostile work environment or sexual harassment cases can win damages for mental anguish or embarrassment without proving severe emotional or physical injury, the New Jersey Supreme Court ruled last week. However, the court said in Tarr v. Ciasulli, A-24-03, that business owners cannot be held individually liable unless they aided the harassment or the creation of a hostile work environment. Moreover, plaintiffs can be awarded attorney fees only if there is an award of damages or injunctive or declaratory relief, the justices ruled. Writing for the 4-2 majority, Justice John Wallace Jr. said the state’s Law Against Discrimination allows for a lessened standard for awarding damages for emotional distress. The Legislature amended the “LAD to authorize recovery of emotional distress damages for discrimination claims,” he said. “The LAD now mandates courts to construe its provisions broadly.” N.J.S.A. 10:5-3 says, “Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages. The Legislature intends that such damages be available to all persons protected by this [A]ct and that this [A]ct be liberally construed in combination with other protections available � “ Said Wallace: “We are convinced that the Legislature intended victims of discrimination to obtain redress for mental anguish, embarrassment, and the like, without limitation to severe emotional or physical ailments.” The plaintiff, Carol Tarr, was a finance and insurance manager at the Mack Auto Mall in Ocean County, N.J., from July 1994 to July 1995. In her suit, Tarr said she was subjected to “extensive and pervasive” sexual harassment. In addition to seeking damages from the company, she also sought to sue the owner, Bob Ciasulli. Employees referred to women in “demeaning gutter slang that we need not repeat here,” Wallace said of Tarr’s allegations. She claimed that one employee left pornographic material on his desk, drew sexually explicit pictures and discussed his sexual escapades. Another employee allegedly said on repeated occasions that he wanted to have a sexual encounter with her. A third employee allegedly “made offensive comments to her in the presence of strangers, intimating that his presence would sexually stimulate her.” The trial judge dismissed her claim for emotional distress damages, saying Tarr must show the same proof of emotional distress as she would in a tort action. HUMILIATION IS DISTRESS The majority adopted the language of the Appellate Division, which reversed the trial judge’s ruling dismissing Tarr’s claim. “To suffer humiliation, embarrassment and indignity is by definition to suffer emotional distress,” the Appellate Division said. “No reasonable woman can be expected to have endured the constant and prolonged barrage of the extraordinarily demeaning and degrading sexual harassment to which this plaintiff was subjected without humiliation, embarrassment and loss of personal dignity and that was the emotional distress to which she testified.” Wallace said the standards of proof for emotional distress claims in a sexual harassment case are less than those for standard tort cases. “We hold that in discrimination cases, which by definition involve willful conduct, the victim may recover all natural consequences of that wrongful conduct, including emotional distress and mental anguish damages arising out of embarrassment, humiliation, and other intangible injuries,” he said. However, Wallace said that in order to hold the owner, Ciasulli, individually liable, Tarr would have to have shown that he participated in the harassment or knowingly allowed it to occur without taking steps to stop it. During the trial, Wallace said, she failed to produce that evidence. Lastly, Wallace said Tarr’s attorneys cannot be awarded fees unless the jury or the judge awards damages or provides some sort of injunctive or declaratory relief. In dissent, Justice Jaynee LaVecchia, joined by Justice Peter Verniero, said the standard of proof for emotional distress claims should not be reduced and should remain at the level required for tort cases. Resa Drasin, the lawyer representing Ciasulli and Mack, called the ruling “a mixed bag.” “Justice LaVecchia wrote an excellent dissent,” says Drasin, of Woehling & Freeman. One of Tarr’s lawyers, Spring Lake, N.J., solo Lynda Lee, says she is pleased that the suit alleging emotional distress will be allowed to go forward. Tarr also was represented by Spring Lake solo Ronald Lueddeke. Lee says she believes Ciasulli should have been held liable since he did nothing to stop the harassment and adds that she and Lueddeke were hoping to be awarded fees. “We’ve spent six years on this case,” she says.

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