- 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.
Elizabeth Zuckerman, Esq. will be conducting a virtual course on October 13, 2020 - Know Your Rights as an Employee. Topics include harassment, hostile work environment and discrimination on the basis of age, race, gender, sexual orientation, disability and other protected statuses. The concept of reasonable accommodation and the interactive process will be explored. There will be discussion regarding the New Jersey whistle-blower law, wage and hour laws, family leave laws, non-compete agreements, new employee protections as a result of COVID-19 and common law claims, such as breach of contract and intentional infliction of emotional distress. In addition, hypothetical employment claims based on real life employment experiences will be discussed. Register at https://www.ssreg.com/princeton/classes/results.asp?code=120.
Edwin W. Schmierer, Esq., a firm Director, will be an instructor for the New Jersey Planning Official’s Planning and Zoning Board members training session in Somerset County on October 3, 2020. Mr. Schmierer chairs the firm’s Government Practice Group and represents a number of land use boards including the Lawrence Township Planning Board and the Zoning Board of Adjustment, Borough of Pennington Joint Planning and Zoning Board of Adjustment and the West Windsor Zoning Board of Adjustment. The New Jersey Planning Officials can be reached at [email protected] for any land use board member interested in attending the training session.
Click Link Here to read important information regarding the Families First Coronavirus Response Act.
In a recent decision (Justin Wild v. Carriage Funeral Holdings, Inc.), the New Jersey Supreme Court determined that an employee who is fired for using medical marijuana outside the workplace may bring a claim for disability discrimination under the New Jersey Law Against Discrimination. Mason, Griffin & Pierson Attorney, Elizabeth Zuckerman, who argued the cause for Amicus Curiae National Employment Lawyers Association of New Jersey, stated the "decision is a win for employees who test positive for marijuana due to their lawful use of medical marijuana outside the workplace."