We Told You So! Summary Judgment Denied to Employer Who Negligently Failed To Implement an Effective Sexual Harassment Program

Employment Law Newsletter

Periodically, we remind employers that they cannot effectively defend sexual harassment claims if they fail to implement and enforce a sexual harassment program that includes well-publicized policies prohibiting unlawful harassment, periodic training of supervisory personnel in the sexual harassment policy, and clear monitoring and investigative procedures reasonably designed to identify and remediate sexual harassment in the workplace. A New Jersey Appellate Court recently hit that message home when it reinstated a claim against an employer who could not establish the aforementioned elements of an effective anti-harassment program.

In , plaintiffs appealed the trial court’s dismissal of their hostile work environment claim under the New Jersey Law Against Discrimination arising from alleged acts by a fellow employee. The trial court concluded that despite the evidence showing that the plaintiffs were exposed to sexual harassment in the workplace, the County could not be vicariously liable because the offender was not a supervisor, the County had a sexual harassment policy in place providing for a complaint procedure, the plaintiff’s invoked the complaint procedure, and the ensuing investigation resulted in a finding that the allegations could not be sustained.

The Appellate Court reversed, citing among other things the following evidence:

• The offender was provided with copies of the victims’ incident reports for a response, in violation of the harassment policy’s assurance of confidentiality.
• Plaintiffs’ incident reports were not forwarded to the personnel department for investigation until nearly one month later.
• Supervisors and the Personnel Director assigned to investigate had minimal training in the area of sexual harassment.
• The investigator’s finding that the claims could not be substantiated was at odds with the trial court’s finding that the plaintiff’s proved a prima facie case of harassment.
• The investigator was unsure if the sexual harassment policy was included in the County’s Employee Handbook or posted on its website.
• The only “monitoring mechanisms” the County had in place were its sexual harassment policy and infrequent staff training.
• The County had no written policy explaining the criteria for evaluating whether sexual harassment claims are well-founded.

Based upon the foregoing, the court reversed summary judgment below, concluding that a jury must determine whether the County was negligent in implementing, carrying out, or monitoring its sexual harassment policy.

This case represents yet another decision by the Appellate Division faulting an employer for not having sufficient “monitoring mechanisms” designed to assess the effectiveness of its policy, without providing any specific guidance on what these monitoring mechanisms might be and what steps an employers must take to comply with this requirement. Perhaps even more troubling is the court’s inclusion of yet another requirement to pass muster as an effective program – a written policy explaining the criteria for the investigator to determine whether sexual harassment claims are well-founded. With the exception of large companies with adequate resources and sophisticated human resources departments, there is little doubt that most employers simply cannot meet the ever-expanding elements of an “effective” anti-harassment policy to a sufficient degree to satisfy our judiciary.

Nevertheless, employers should review their anti-harassment programs to enhance any claim that its program was effective. Wide distribution of policies in handbooks and on websites must be implemented. Companies should verify that supervisors and employees are receiving sufficient periodic training – we suggest at least once every 2-3 years. Monitoring mechanisms might include employee surveys to inquire about offensive behaviors in the workplace, and audits of any complaints and investigations to determine if these matters were appropriately handled by supervisors and other members of management. Finally, in light of the new requirement for written criteria to aid the investigator in determining whether a complaint has merit, employers should give serious consideration to hiring a third party investigator with sufficient credentials to undertake the investigation. While these costs can be significant, they will pale in comparison to the cost of defending – not to mention losing – a sexual harassment claim.