New Jersey Appellate Division Decision Stresses Importance of Meaningful Anti-Harassment Policy and Training
An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for allegations of sexual, racial, or other harassment under New Jersey law. The New Jersey Appellate Division in Dunkley v. S. Coraluzzo Petroleum Transporters recently reinforced this fact, and the decision provides a helpful reminder to employers that adopting clear anti-harassment policies, providing regular training to its workforce, and immediately addressing allegations of harassment/discrimination once presented, are important factors that may help them avoid liability for the conduct of employees who violate such policies.
In Dunkley, the Plaintiff was employed as a oil delivery driver with S. Coraluzzo Petroleum Transporters (“SCPT”). At the outset of his employment, Plaintiff was required to attend two days of in-class safety training and two weeks of “on-road” on-the-job training. Richard Harrington, another truck driver, was assigned as Plaintiff’s on-road trainer. During the training period, Harrington made numerous race-related comments directed toward Plaintiff. Plaintiff reported these comments to a number of his supervisors, including Elwood Sickler, SCPT’s safety coordinator. Immediately following this meeting, Sickler informed Plaintiff that he was being assigned a new trainer, and would no longer have to work with Harrington. Shortly thereafter, however, Plaintiff resigned from his employment with SCPT.
Plaintiff then filed suit asserting violations of the New Jersey Law Against Discrimination (“LAD”), contending that SCPT allowed conduct amounting to a hostile work environment which caused his constructive discharge. Specifically, Plaintiff alleged that he felt ostracized by co-workers, who began to shy away from him after his complaint about Harrington to his supervisors. SCPT moved for summary judgment, which the trial court granted. In doing so, the trial court concluded that Harrington was not Plaintiff’s supervisor and concluded that SCPT was therefore not vicariously liable for Harrington’s actionable conduct.
Employer Vicarious Liability
By way of background, as set forth in the seminal New Jersey Supreme Court decision of Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993), under New Jersey law, an employer will be liable for 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. Under Lehmann, an anti-harassment policy is relevant to the issue of the employer’s negligence in protecting against 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.
Appellate Division Decision
On appeal, Plaintiff argued that (i) SCPT failed to take proper steps to curb the discriminatory conduct because its anti-harassment policy lacked structure and monitoring mechanisms; (ii) SCPT did not train its supervisors and employees regarding the anti-harassment and anti-retaliation policies; and (iii) Plaintiff’s complaints were not effectively addressed because SCPT’s upper management did not show “an unequivocal commitment” to assure “harassment would not be tolerated.” Plaintiff also appealed the trial court’s finding that Harrington did not qualify as his “supervisor,” a key factor in establishing vicarious liability under the LAD.
The Appellate Division disagreed. While the Court did note that the question of whether Harrington could be considered Plaintiff’s supervisor was “debatable,” it nevertheless explained that vicarious liability depends on “additional facts,” such as “if the employer negligently or recklessly failed to have an explicit policy that bans . . . harassment and that provides an effective procedure for the prompt investigation and remediation for such claims.”
In this regard, the Panel highlighted the fact that SCPT had an employee handbook with an express policy barring harassment, discrimination, and retaliation, as well as a procedures for reporting and investigating harassment. Further, the evidence demonstrated that SCPT distributed the employee handbook to every employee, including the Plaintiff, and provided relevant training. Specific to Plaintiff’s allegations, the Appellate Division concluded that when SCPT learned of Plaintiff’s complaints about Harrington, it immediately investigated, took remedial action, and acted to protect Plaintiff from further discrimination.
“Following our review of the record,” the court summarized, “we determine the evidence shows the employer followed the steps outlined in Lehmann by adopting policies, offering a complaint procedure, providing on-going training, and addressing discrimination once presented.”
While the mere existence of an anti-harassment policy is insufficient to insulate an employer from liability for its employees’ harassing conduct, the Dunkley decision serves as a powerful reminder that an anti-harassment policy that is clearly defined and widely publicized, supported by training, and routinely enforced, will go a long way toward avoiding the imposition of employer vicarious liability under the LAD. The attorneys in the Gibbons Employment & Labor Law Department routinely draft and revise employee handbooks, including anti-harassment, discrimination, and retaliation policies, conduct employee and manager training, and conduct investigations into allegations of harassment, discrimination, and/or retaliation. Please feel free to contact any Employment & Labor Law attorney at Gibbons for such services or with questions about the Dunkley case.