- 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.
Sharon A. Dragan has been named Director and Shareholder with Mason, Griffin & Pierson. Sharon received a J.D. from Seton Hall University School of Law where she served as Bureau Editor for the Seton Hall Legislative Bureau and is admitted to practice law in New Jersey and Pennsylvania. She practices in the areas of local government law, zoning and land use law, real estate law, and estate law. Sharon is Attorney for the Township of Readington, Attorney for Alexandria Township, Attorney for Delaware Township and Attorney for Special Open Space Counsel of West Amwell Township. In her continued service to the legal profession, Sharon served on the District XIII Ethics Committee for several years, the committee that acts as the investigative and prosecutorial arm of the Supreme Court of New Jersey in discharging the Court's constitutional responsibility to supervise and discipline New Jersey attorneys. Sharon is a Trustee of the New Jersey Institute of Local Government Attorneys, a professional organization with the purpose of promoting education and professionalism among local government attorneys. She is a member of the Hunterdon County, New Jersey State and Pennsylvania State Bar Associations.
Mason, Griffin & Pierson continues its support of youth basketball programs in the community. For more information on the Dillon Youth Basketball League go to the Princeton Recreation Department at www.leaguelineup.com
For information on the Montgomery Basketball Association go to www.montgomerybasketball.com
In May of this year, New Jersey joined the growing number of states to enact paid sick leave laws. The New Jersey Paid Sick Leave Act is currently in effect and below you will find certain information that is important for all New Jersey employers to understand.
Who Does it Affect?
The Act applies to New Jersey employers of all sizes, including businesses that are based elsewhere but have employees located in New Jersey. While several New Jersey municipalities already had paid sick leave ordinances, this new state law preempts them, meaning they no longer apply and employers throughout the state are now subject to one consistent set of requirements.
The Act does not apply to a few narrow categories of employees: (1) construction industry employees working under collective bargaining agreements; (2) per diem health care employees; or (3) public employees who are already provided with sick leave with full pay pursuant to any other state law, rule, or regulation.
Mason, Griffin & Pierson is pleased to sponsor Montgomery Township Education Foundation. The Foundation's fundraiser takes place on the evening of February 23 at Cherry Valley Country Club in Skillman, New Jersey. The Foundation is an independent, non-profit organization set up to support strategic programs for the benefit of the Montgomery Township public school children.
For more information go to one.bidpal.net/mtefcomedynight