- Of Counsel
All New Jersey employers are subject to claims for sexual harassment and other forms of unlawful discrimination. Fortunately, there are a few inexpensive steps businesses can take to significantly reduce their exposure and risk. Several recent cases help provide guidance on common pitfalls and errors that can lead to liability for employee claims.
There are two categories of sexual harassment: 1) quid pro quo, where an employee’s submission to sexual demands is a condition of employment and 2) hostile work environment, where an employee is harassed because of his or her sex to the point at which the working environment becomes hostile.
Employers are strictly liable for all equitable damages required to remedy adverse employment actions resulting from sexual harassment, e.g., reinstatement, back pay or front pay. Employers are liable for additional compensatory damages in cases where the employer was negligent with respect to prevention or addressing sexual harassment, and for sexual harassment by supervisors if the supervisor is acting within the scope of his employment or in cases where the employer delegates to the supervisor control of the work environment and the supervisor abuses that authority.
An employer may be able to avoid liability if it can show that it took effective preventative steps, including 1) formal policies prohibiting harassment in the workplace; 2) complaint structures for employees’ use, both formal and informal in nature; 3) anti-harassment training, which must be mandatory for supervisors and managers, and must be offered to all employees of the organization; 4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and 5) an unequivocal commitment from the highest levels of the employer that harassment will not be tolerated, and demonstration of that policy commitment by consistent practice. In determining whether an employer has implemented effective preventative measures, the following factors are important: 1) periodic publication of the employer’s anti-harassment policy; 2) the presence of an effective and practical grievance process for employees to use; and 3) training for workers, supervisors, and managers concerning how to recognize and eradicate unlawful harassment. Thus, if the right steps are taken, New Jersey law permits an employer to assert the existence of an effective anti-harassment workplace policy as an affirmative defense to sexual harassment claims.
A. Allen v. Adecco, Inc. In this case, plaintiff’s supervisor allegedly made repeated sexual comments and touched her inappropriately. Plaintiff’s suit was allowed to proceed to trial because 1) it was unclear whether plaintiff ever received a copy of the employer’s sexual harassment policy; 2) plaintiff did not receive any sexual harassment training; 3) the supervisor was not familiar with the employer’s sexual harassment policy; 4) there was no evidence of effective monitoring and sensing mechanisms; and 5) the employer had reason to question the efficacy of its harassment policy but did nothing to address the issue. B. Wallace v. Mercer County Youth Detention Center In this case, plaintiff alleged that a co-worker attempted to pursue her sexually, made sexual comments to her, and touched her inappropriately. An incident report was filed with the employer’s supervisor and then given to the harassing employee. The harassment allegedly continued after the filing of the report. After further delay, the report was sent to the personnel department. Nearly a month went by before plaintiff was contacted concerning the report. An assistant personnel director who had last attended a sexual harassment training seminar ten years earlier was assigned to investigate the matter. The investigator concluded that there was not enough information to sustain the charge because 1) the incident was not reported immediately; 2) certain information was withheld; 3) plaintiff expressed she did not want the harassing employee to be terminated; and 4) there were no witnesses. The court, however, allowed the suit to proceed to trial because there was evidence that: 1) supervisors were not adequately trained on how to handle sexual harassment claims; 2) the employer did not comply with the confidentiality requirements of its policy; 3) the employer unduly delayed its investigation; and 4) harassment continued during the investigation period. There were additional questions concerning whether the policy was adequately disseminated; the lack of a discernible criteria to apply when evaluating a claim; and whether or not there were effective monitoring procedures.
In many cases employers can avoid liability for sexual harassment by 1) establishing and regularly disseminating a sexual harassment policy; 2) establishing and implementing effective formal and informal complaint structures; 3) providing periodic sexual harassment training to supervisors and employees; 4) employing regular and effective monitoring mechanisms to determine whether the policy is working; and 5) demonstrating an unequivocal commitment from the highest levels that harassment will not be tolerated.
Michael Rosenberg will be honored at the thirteenth annual New Jersey Golf Foundation Golf Classic on August 12 at the Baltusrol Golf Club in Springfield, New Jersey. Mason, Griffin & Pierson is pleased to be a sponsor of the event. The Foundation is the charitable arm of the New Jersey Section, PGA of America and was created to positively impact lives and communities through the game of golf. For more information go to www.njgolffoundation.org.
Girls on the Run (GOTR) of Central New Jersey is hosting a “Family Fun Night” at Somerset Patriots Baseball Stadium in Bridgewater, New Jersey on Friday, September 20 starting at 7:05 PM. As a thank you and in recognition of its generous support over the years, Mason, Griffin & Pierson will be included in the GOTR suite at the event. GOTR is a 10 week program in the fall and spring for girls in grades 3 through 8 to help girls successfully navigate adolescence. The Girls on the Run curriculum combines training for a GOTR 5K running event with lessons that inspire girls to become independent thinkers, enhance their problem solving skills and make healthy decisions. GOTR of Central New Jersey serves Middlesex, Monmouth, Ocean, Camden and Somerset Counties. Associate Attorney, Nicole Sciotto is a member of the Advisory Board of Girls on the Run, Central New Jersey. For more information go to www.GOTRCNJ.org and to purchase tickets please visit www.somersetpatriots.com/tickets/groupportal; click “Group Portal Login” and enter group password “GOTR19”.
The firm is pleased to support "An Evening of Hope" on Thursday, September 12 at the Riverside Ballroom at the Lambertville Station Inn in Lambertville, New Jersey. The fundraiser honors community leaders, Steve and Christine Little. The event will raise funds to help foster safety, empowerment and healing for survivors of domestic and sexual violence. For more information go to https://safeinhunterdon.org/.