- 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.
The firm is pleased to be a sponsor at the Big Brothers Big Sisters Mercer October 17 fundraiser event at Cobblestone Creek Country Club in Lawrence, New Jersey. The event features dishes from several of the area's finest restaurants, tastings of wine and beer and live music. The evening will honor individuals who volunteer time and commitment making BBBS Mercer a success. For more information go to www.bbbsmercer.org
Womanspace's Annual Communities of Light Event on December 2nd is a public awareness project and fundraising campaign to benefit victims and survivors of domestic violence and sexual assault. The launch event is free and open to the public. It includes a press conference and reception and will take place at 5:30 PM on October 22 at Terhune Orchards, 330 Cold Soil Road in Lawrenceville. Edwin Schmierer, Director with Mason, Griffin & Pierson is a member of the Board of Directors of Womanspace and the firm is a sponsor of the event. The event will honor the Police Chiefs and coordinators of Mercer County. More information at www.womanspace.org.
Mason, Griffin & Pierson is pleased to be a sponsor at the Philly Pops concert to benefit The Foundation of Morris Hall/St. Lawrence, Inc. The Foundation provides funding for skilled nursing, out patient health care, and rehabilitation for residents at Morris Hall and St. Lawrence Rehabilitation Center. The concert will be at the Patriots Theater, Trenton War Memorial. For information and tickets go to www.morrishall.org/events.php
The firm is a sponsor for the November 24 Girls on the Run Central New Jersey 5K in downtown Somerville, New Jersey. Girls on the Run is a program for girls in grades 3 through 8 which teaches girls to be joyful, healthy and confident using a fun, experience-based curriculum which creatively integrates running. Associate Attorney Nicole Sciotto is member of the Advisory Board of Girls on the Run, Central New Jersey Chapter. For more information, including donations and race registration, please visit www.gotrcnj.org.
The firm is a sponsor for the November 2 West Windsor Mayor's Ball. The event takes place at the Boathouse on Mercer Lake in West Windsor and benefits the Princeton Junction Volunteer Fire Company. For more information go to www.westwindsornj.org/WW-givesback/index.html.
Trishka Waterbury Cecil, past President of the New Jersey Institute of Local Government Attorneys (NJILGA), is a presenter at the New Jersey State League of Municipalities Conference in Atlantic City. Mandatory Certification Class For New Board Members, sponsored by New Jersey Planning Officials is on November 19. Muincipal Law Update 2019, sponsored by New Jersey Institute of Local Government Attorneys, and OPMA/Civility/Administration of Public Meetings, sponsored by New Jersey State League of Municipalities are on November 21. For more information, go to www.njpo.org, www.njilga.org or www.njlm.org.