NJ Employment Decision Highlights Importance of Anti-Harassment Policy

A recent New Jersey employment decision highlights how important it is for employers to implement and enforce anti-harassment policies.

The Appellate Division dismissed a sexual harassment lawsuit after finding that the employer used due care in adopting and implementing an effective anti-sexual harassment policy.

The Facts of the Case

In Aguas v. State of New Jersey, a corrections officer filed a complaint against the State of New Jersey, alleging violations of the Law Against Discrimination (LAD), due to the sexual harassment/hostile work environment created by her supervisors. The allegations included repeated sexual advances at the hands of her male supervisor.

The court ultimately dismissed the suit on summary judgment. Although it found that the plaintiff established a prima facie showing of sexual harassment, it concluded that employer liability was inappropriate because the defendant instituted a proper anti-discrimination policy and engaged in a thorough investigation of the claims.

The Court’s Decision

The Appellate Division agreed with the lower court. It found that the record was devoid of any proof on which to hold the State vicariously liable for the offending conduct of its employees.

In reaching its decision, the court relied on Gaines v. Bellino, 173 N.J. 301 (2002), wherein the court stated, “A defendant is entitled to assert the existence of an effective anti-sexual harassment workplace policy as an affirmative defense to vicarious liability . . . .” The Gaines decision further outlined several factors relevant to determining whether an employer has acted negligently in failing to establish an anti-harassment policy, including:

• Formal policies prohibiting harassment in the workplace;
• Complaint structures for employees’ use, both formal and informal in nature;
• Anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization;
• The existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and
• An unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.

In this case, the court found that the NJ Department of Corrections had a written policy prohibiting discrimination, harassment, and retaliation, which set forth procedures for reporting misconduct (i.e., by filing a formal complaint).  While the plaintiff maintained that she never received training, the court noted that the fact that she filed a prior complaint indicates that she knew how to report discriminatory conduct.

The court also agreed that defendant launched a sufficiently comprehensive investigation into the alleged harassment. As the opinion highlighted, “The inquiry endured for over a month and involved interviews of all relevant individuals and the taking of witness statements. In other words, this was not an investigation ‘in name only.’”

As this case highlights, it is possible for an employer to successfully defend a sexual harassment lawsuit by enacting comprehensive policies and procedures to address workplace harassment and then following through with them if a complaint is filed. Conversely, failing to do so can result in a costly lawsuit.

If you have any questions about this case or would like to discuss your company’s anti-harassment policies and procedures, please contact me, Christine Vanek, or the Scarinci Hollenbeck attorney with whom you work.