In Wallace v. Mercer Cnty. Youth Det. Ctr., No. A-5006-09T1 (App. Div. October 12, 2011), the New Jersey Appellate Division reversed a trial court's decision dismissing plaintiffs' vicarious liability claim for sexual harassment against their employer. Previously, the trial court found that plaintiffs could not move forward with their claim -- despite presenting a prima facie case of sexual harassment -- because the accused harasser was not a supervisor and the Mercer County Youth Detention Center ("MCYDC") had a sexual harassment policy in place at the time of the alleged harassment. Upon review, the Appellate Division found that a harasser's status as a co-worker could not preclude plaintiffs from bringing a claim of sexual harassment against an employer. This decision reaffirms that an employer can be held vicariously liable for sexual harassment resulting from the actions of the victim's co-worker or supervisor.
Factual Background and Procedural History
Plaintiffs Moneck Wallace ("Wallace") and Tina Stewart ("Stewart") filed suit against MCYDC alleging (Count One) a hostile work environment arising from persistent sexual harassment by a fellow employee -- Jerel Livingston ("Livingston") -- under the New Jersey Law Against Discrimination, ("LAD"); (Count Two) retaliation; (Count Three) failure to investigate; and (Count Four) negligent hiring and supervision.
According to Wallace, Livingston often tried to pursue her sexually, repeatedly made comments about how sexually attracted he was to her, and was known to make kissing noises near Wallace's face. As to Stewart, Livingston often made comments about her buttocks and how he wanted to kiss her, made sexual moaning sounds in Stewart's presence, and at one point caressed Stewart's outer and inner thigh.
As a result of Livingston's actions, both women filed sexual harassment reports with their supervisor. Their supervisor, however, admitted that Livingston was provided with copies of both plaintiffs' reports so he could respond to the allegations. Additionally, plaintiffs' reports were not sent to MCYDC's personnel department until 11 days after being filed and plaintiffs were not contacted by MCYDC's personnel department until almost a month later. Upon receipt of the reports, MCYDC assigned the assistant personnel director, Aixa Aklan ("Aklan") to investigate the claims. Notably, Aklan's sexual harassment training consisted of a human resources class she took in college and one state-sponsored class she took seven years before the alleged harassment.
After conducting an investigation, Aklan concluded that plaintiffs' sexual harassment claims were unsubstantiated for several reasons, including: (1) plaintiffs did not report the incidents immediately after they occurred; (2) plaintiffs did not disclose their friendship with each other; (3) no witnesses were present at the time of the alleged harassment; and (4) plaintiffs did not want Livingston terminated as a result of their reports. Interestingly, Aklan acknowledged that, although MCYDC had a sexual harassment policy which was disseminated to supervisors by hard copy or email, she was unsure if the policy was included in MCYDC's employee handbook or posted on MCYDC's website.
After reviewing all of the presented evidence, the trial court granted MCYDC summary judgment on all claims. Specifically, the trial court held that plaintiffs' hostile work environment claim arising from sexual harassment by co-worker Livingston must be dismissed because he did not supervise the plaintiffs and MCYDC had a sexual harassment policy in place at the time of the alleged harassment. Plaintiffs appealed the trial court's dismissal of their hostile work environment claim.
The Harasser's Status as a Co-Worker Cannot Thwart a Claim of Sexual Harassment Against an Employer
The Appellate Division found that the trial court incorrectly dismissed plaintiffs' sexual harassment claims. Specifically, the Appellate Division observed that the trial court mistakenly relied on Livingston's status as a co-worker when granting summary judgment to MCYDC.
When determining whether a plaintiff has provided enough facts to establish a claim of sexual harassment, the Appellate Division stated that the trial court must analyze the "preventative mechanisms" put in place by the employer. The mere existence of an anti-harassment policy is not enough to defend against a vicarious liability claim for sexual harassment. The following components are necessary to have an effective policy:
- Formal prohibition of harassment;
- Formal and informal complaint structures;
- Anti-harassment training;
- Monitoring mechanisms for assessing the policies and complaint procedures; and
- Unequivocal commitment to intolerance of harassment demonstrated by consistent practice.
Additionally, the Appellate Division stated that the elements necessary to create a "safe haven" for employees against sexual harassment are:
- Periodic publication of the employer's anti-harassment policy;
- The presence of an effective and proactive grievance process; and
- Training for workers, supervisors, and managers concerning how to recognize and eradicate unlawful harassment.
Here, the Appellate Division found that MCYDC's employees were not adequately trained because both supervisors and employers received the same level of sexual harassment training, which consisted of a ten-question quiz at the time of hiring. The court was appalled that some supervisors only received one training session in 13 years. Additionally, the court noted that, while MCYDC's sexual harassment policy required that all investigations be kept confidential, Livingston was allowed to read plaintiffs' reports, thereby alerting him to his accuser's identities and the specific allegations against him.
When discussing MCYDC's sexual harassment policy, training, and implementation, the Appellate Division identified multiple deficiencies including: (1) plaintiffs' supervisor did not submit their reports until 11 days after receipt despite the requirement that all reports be submitted "immediately"; (2) MCYDC's administration did not contact plaintiffs until almost a month after receiving the reports; (3) MCYDC's failure to include its policy in the employee handbook or website raised questions regarding the employer's efforts to disseminate and execute the policy; and (4) MCYDC's policy had no explanation outlining the criteria for evaluating sexual harassment claims. The Appellate Division also observed that MCYDC's lack of employee training was evident when analyzing the investigator's explanation of her conclusion that no harassment existed. Significantly, the Appellate Division stated that it was not unusual for harassment to occur without any witnesses present or that the alleged harassment was not reported by the plaintiffs immediately.
This decision serves as a reminder to employers that simply having a sexual harassment policy in place is not enough to create an effective anti-harassment program. The policy must be descriptive, easily accessible, and effectively carried out. Training is crucial. Additionally, this decision reaffirms that the actions of both an employer's supervisors and general employees can result in a vicarious liability claim for sexual harassment. To defend against such claims, we recommend the following:
- Make sure all employees continue to receive in-depth sexual harassment training. A cursory quiz or work sheet at the beginning of employment is not enough. Employees should receive a training session running at least 30 to 60 minutes every two to three years. This continuous training will refresh an employee's memory of what is appropriate in the workplace. Perhaps more importantly, all training sessions should be documented and those records preserved. Separate training for supervisory personnel and human resources personnel in how to administer policies and conduct investigations is strongly recommended.
- Draft clear and descriptive policies regarding the evaluation and investigation of sexual harassment claims. Every step must be clearly explained. The evaluation process should also be thoroughly documented and include multiple levels of review.
- Consistency is key. Employers should ensure that its supervisors do not deviate from the policies. If a policy says something must be done "immediately" or information should be kept "confidential," all efforts must be taken to ensure that policies are effectively administered.
- Continue to distribute the company's sexual harassment policy periodically. All efforts should be taken to make the policy available through multiple forms of distribution.
The more accessible the policy, the more commitment in its administration, and the more frequent and effective the training for employees and supervisors, the stronger the defense.