New Jersey Appellate Division Holds that Anti-Harassment Policy Alone Cannot Shield Employers from Liability
An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for sexual harassment. As the New Jersey Appellate Division recently made clear, however, the mere existence of such a policy is insufficient to insulate an employer from liability for its employee’s sexually harassing conduct. Though an unpublished decision, Allen v. Adecco, Inc., provides a powerful reminder that to protect an employer from liability, an anti-harassment policy must be widely publicized, supported by training, and routinely enforced. Indeed, in Allen, although the employer promptly investigated plaintiff’s harassment claim and took prompt remedial action, the court ruled that the employer might still be held accountable if the harassment could have been prevented in the first place but for the employer’s alleged insufficient publication and training with regard to its anti-harassment policies.
Under New Jersey law, an employer will be liable for sexual harassment by a supervisor when the employer is negligent in protecting against a hostile work environment and the supervisor (1) is acting within the scope of the employment when engaging in harassment and (2) has abused delegated authority. An anti-harassment policy is relevant to the issue of the employer’s negligence in protecting against sexual harassment and may also provide the basis for an affirmative defense to vicarious liability imposed on an employer for a supervisor’s harassment of another employee under agency principles.
At issue in Allen was a University of Medicine and Dentistry of New Jersey (UMDNJ) temporary employee’s claim that she was sexually harassed by a supervisor and then terminated in retaliation for complaining about the harassment. The trial judge dismissed the plaintiff’s claims on summary judgment on the basis that UMDNJ had an anti-harassment policy, promptly addressed plaintiff’s complaint by transferring her harasser, and subsequently terminated plaintiff’s assignment due to her job performance and attendance. In reversing summary judgment, the Appellate Division stated that to be entitled to an affirmative defense based on an anti-harassment policy, an employer must demonstrate the policy’s effectiveness through “periodic publication of the policy; an effective and practical grievance process; and training for workers, supervisors and managers on recognition and eradication of unlawful harassment.” The court found issues of fact regarding the effectiveness of UMDNJ’s policy, specifically, whether UMDNJ’s policy was made known to temporary employees like plaintiff, whether the alleged harasser had been trained on the policy, and whether there was an effective monitoring system in place. These issues entitled plaintiff to present her claims before a jury, which “could well conclude that UMDNJ’s commitment to training and monitoring and to eradicating harassment was insufficient to allow it to avail itself of the case law’s safe haven.”