Employment attorneys and human resource professionals have long recognized the importance of implementing an anti-harassment policy.
In addition to improving morale and providing clear guidance to employees in terms of what conduct in the workplace is and is not acceptable, such a policy, according to federal and state law, may provide an employer with a safe haven from discrimination claims. However, a recent New Jersey Appellate Division decision, Allen v. Adecco, Inc., et al., demonstrates that having a policy alone will be insufficient to provide an employer with the legal protection it needs. Essential components of an effective anti-harassment policy are: a formal prohibition of harassment; formal and informal complaint structures; antiharassment training; monitoring mechanisms for assessing the effectiveness of the policies and complaint procedures; and an unequivocal and consistent commitment to intolerance of harassment. In Allen, the New Jersey Appellate Division reversed the summary judgment order entered by the lower court, finding genuine issues of material fact as to whether the employer’s anti-harassment policy met the standards necessary to defeat a claim of negligence or vicarious liability under the New Jersey Law Against Discrimination (“NJLAD”). As discussed below, the court’s decision contains important lessons for all employers, executives, and human resource personnel.
Through Adecco, Inc., an employment staffing agency, plaintiff Allen began working as a temporary employee for the University of Medicine and Dentistry of New Jersey (“UMDNJ”) off and on in various capacities beginning in October 2006. In May 2007, she began working on a new assignment under the supervision of several individuals, including Mr. Coles (an individually named defendant), who she alleges began making sexually graphic comments to her and touched her in a sexually inappropriate manner shortly after she began working under his direction. According to the plaintiff, she objected to Coles’ behavior several times but he continued his inappropriate conduct. In addition, she claims that when she told Coles that she planned to report him, he replied that she would lose her job if she did and said she would not be believed because he had worked for UMDNJ for a long time and knew a lot of people. She claims he also told her that she would not get a regular position with UMDNJ unless she had relations with him.
The plaintiff delayed at least one month before reporting Coles to a more senior-level employee who, in turn, confronted Coles and told him that the matter was serious, especially because another investigation against him was pending with respect to claims that Coles had made ageist and sexist comments to another employee.
Within hours of plaintiff’s complaint, Coles was transferred to another position in the same building and by the following day, the plaintiff’s complaint had been transferred to the UMDNJ office responsible for compliance with UMDNJ’s antiharassment policy. The next day, the plaintiff allegedly informed her supervisor that Coles had been standing outside their building when she left for lunch, waved at her, and smiled. According to the supervisor, the plaintiff informed her that she was not comfortable working in the same building as Coles. As a result, UMDNJ decided that the plaintiff should be transferred to an assignment in a different building where she was less likely to run into Coles.
That same day, the plaintiff informed Adecco (the staffing agency associated with UMDNJ) about her complaint and Adecco informed her that she would be reporting to a different unit at UMDNJ. Thereafter, some factual issues arose regarding the plaintiff’s attendance and she had a series of new assignments that were short-lived. Ultimately after several instances in which the plaintiff was unable to work for personal reasons, UMDNJ informed Adecco that the plaintiff’s assignment would end because of her “attendance/punctuality.”
A UMDNJ representative testified that UMDNJ has a policy regarding sexual harassment but was unable to confirm that the plaintiff had received it. While Coles attended UMDNJ’s anti-harassment training, during his deposition he was unable to answer many questions about the content of the policy and the procedures governing complaints.
UMDNJ confirmed that the plaintiff was not invited to participate in UMDNJ’s anti-harassment training because of its contention that she was an employee of Adecco and not of UMDNJ. The plaintiff acknowledged receiving an anti-harassment policy from Adecco but she claimed that she was concerned she would be fired if she complained to Adecco about harassment.
Relevant Procedural History
Following UMDNJ’s and Adecco’s allegedly insufficient response to her complaints and the termination of her staffing assignment, the plaintiff filed suit against UMDNJ, Adecco and Coles under the NJLAD, claiming hostile work environment sexual discrimination and retaliation. After discovery, the trial judge granted UMDNJ’s, Adecco’s and Coles’ motions for summary judgment and dismissed the plaintiff’s complaint based upon its determination that the antiharassment policies provided the plaintiff’s employers with a safe haven. According to the trial court, UMDNJ had addressed the plaintiff’s complaint promptly by transferring her harasser. The trial court also found that the termination of the plaintiff’s assignment at UMDNJ was due to her poor job performance, not her complaint about harassment. The plaintiff moved before the trial court for reconsideration, unsuccessfully, and then appealed the trial court’s dismissal of her claims against UMDNJ to the Appellate Division. (She did not appeal the dismissal of her claims against Adecco or Coles.) Finding genuine disputes of material fact, the Appellate Division reversed and remanded the trial court’s summary judgment order.
Lehmann v. Toys R Us, 132 N.J. 587 (1993) is the seminal case in New Jersey regarding sexually hostile work environment claims. In Lehmann, the New Jersey Supreme Court held that a plaintiff states a cause of action for hostile work environment sexual harassment when she alleges discriminatory conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. Following two key United States Supreme Court decisions regarding an employer’s possible affirmative defense to a hostile work environment claim, the New Jersey Supreme Court held in Gaines v. Bellino, 173 N.J. 301, 303 (2002) that “if an employer has exercised due care in acting to prevent a sexually discriminatory hostile work environment, vicarious liability should not attach. The establishment of an effective antisexual harassment workplace policy and complaint mechanism evidences an employer’s due care and may provide affirmative protection from vicarious liability.” However, based upon the facts presented in Gaines, summary judgment in the employer’s favor was inappropriate given questions about the effectiveness of the employer’s sexual harassment policy. The Court explained that an employer’s sexual harassment policy must be more than “mere words”; rather, the NJLAD requires an “unequivocal commitment from the top” that the employer’s opposition to sexual harassment is not just words but can be supported by consistent practice.” In Gaines, many fact questions existed as to whether there were any teeth to the employer’s anti-harassment policy.
An anti-harassment policy that simply sits on a shelf without enforcement is insufficient to support an affirmative defense for an employer charged with sexual harassment. Rather, for an employer to sufficiently defend against vicarious liability from an employee’s harassing conduct, the employer must periodically publish its anti-harassment policy; maintain an effective grievance process for employees to use; and train its workers, supervisors, and managers on how to recognize and eliminate unlawful discrimination, which includes harassment.
In the Allen case, the Appellate Division held that there were factual disputes as to whether UMDNJ’s policy met the standards necessary to defeat the plaintiff’s claims of negligence or vicarious liability under the NJLAD. For example, although UMDNJ had an anti-harassment policy, it did not distribute a copy to the plaintiff, and Coles, the alleged harasser, was unable to answer questions about it during his deposition, despite having participated in training. As part of his attempt to defend against the plaintiff’s internal complaint, Coles presented an affidavit from a subordinate denying a rumor that Coles had touched her inappropriately; the court held that the fact the supervisor knew nothing about the rumor in the first place could lead jurors to conclude that UMDNJ’s commitment to training, monitoring the workplace, and eradicating harassment was insufficient.
With respect to the plaintiff’s retaliation claim, the court observed that although UMDNJ had transferred Coles the same day that the plaintiff had complained, thereafter when she complained that he had stood outside her building, smiled, and waved at her, UMDNJ decided to transfer the plaintiff and not Coles. The court held that from the plaintiff’s perspective (which is the perspective it must consider on a summary judgment motion), she complained about Coles’ taunting her after she filed her first complaint, and as he allegedly had predicted all along, her assignment with UMDNJ was terminated. Accordingly, the appellate court held that UMDNJ was not entitled to summary judgment on the plaintiff’s claim of retaliatory transfer.
Lessons to Be Learned
The court’s decision in Allen demonstrates that potential liability for hostile work environment and sexual harassment claims does not end merely with the issuance of an anti-harassment policy that sits in an employee handbook on a shelf in the HR office. Employers must take active steps to formally prohibit harassment, implement formal and informal complaint structures, conduct anti-harassment training, develop monitoring mechanisms to assess the effectiveness of policies and complaint procedures, and demonstrate an unequivocal and consistent commitment to intolerance of unlawful harassment.
As a result, all employers should consider taking the following precautions:
- Work with counsel to develop an antidiscrimination and anti-harassment policy that expressly prohibits inappropriate conduct and specifies the consequences of such misconduct, reporting procedures, and anti-retaliation provisions.
- In addition to providing training to employees, supervisors, and managers, make sure that all highlevel executives, including directors and officers, receive a copy of the appropriate workplace policies, and are trained on what constitutes inappropriate workplace conduct, as well as their responsibilities for correcting the inappropriate conduct.
- Establish clear guidelines for conducting internal investigations into complaints of inappropriate conduct. Such guidelines should strive to promote neutral and thorough review of complaints. The guidelines should contain mechanisms for replacement of an investigator should a conflict of interest arise.
- Uniformly enforce anti-discrimination and anti-sexual harassment policies and procedures and take prompt remedial action once inappropriate workplace conduct is brought to your attention.
- Periodically review the effectiveness of mechanisms for reporting inappropriate workplace conduct, and ensure that such mechanisms are functioning properly.
- In the case of joint employer or consulting relationships, ensure that communications and follow-through on anti-harassment standards, training, and enforcement of those standards are addressed with the staffing or consulting agency.