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In a major employment law ruling, the New Jersey Supreme Court, in Gaines v. Bellino, 801 A.2d 322, 202 N.J. LEXIS 1083 (2002), unanimously held on July 24 that the failure of a NJ-based employer to provide its managerial and supervisory employees with anti-harassment training is negligence that may deprive that employer of the right to raise its workplace anti-harassment policy as an affirmative defense to claims of sexual harassment.
Summary of the Facts
Maria Gaines, a Hudson County Corrections Officer, received a copy of the County's sexual harassment policy when she began her employment. The following year, Gaines alleged that her shift supervisor, Joseph Bellino, grabbed her face and kissed her against her will while the two were alone in the jail. Although Gaines reported this misconduct to one of her supervisors, the supervisor did not report this incident to his superiors because the County had not provided him with any anti-sexual harassment training. (In fact, several corrections officers testified that they had not received any training concerning the County's sexual harassment policy.)
One month later, while Gaines and Bellino were touring a new jail facility alone, Bellino told Gaines he "would not force himself" on her again. On another occasion, Bellino, in Gaines' presence, discussed the kissing incident with a high-ranking jail officer, telling him that Gaines' body "shivered" when he kissed her, prompting the officer to laugh and cover his ears. Two years later, Bellino, while again discussing the kissing incident in Gaines' presence with another high-ranking jail officer, commented that nobody would believe Gaines if Bellino raped her. The officer advised Bellino "to stop."
Gaines' allegations were ultimately brought to the attention of the County's Director of Personnel as a result of Gaines' deposition testimony in an unrelated case. Following an internal investigation of her claims, the County suspended Bellino, who retired shortly thereafter.
Gaines filed suit in 1998 against Bellino and the County Correctional Facility alleging violations of the New Jersey Law Against Discrimination (NJ LAD). The County moved for a summary dismissal of Gaines' claims without a trial, relying on its anti-harassment policy as an affirmative defense to Gaines' claims. Both the trial and appellate courts agreed with the County's position, concluding that the County was shielded, as a matter of law, from vicarious liability for Bellino's misconduct because (a) it had promulgated a workplace anti-harassment policy, (b) Gaines had failed to report the harassment incidents to higher level management in accordance with the terms of the policy even though she knew of the policy's existence, and (c) the County took disciplinary action against Bellino as soon as it learned of the alleged harassment. The Supreme Court reversed both lower court rulings and remanded the case for further proceedings.
The New Jersey Supreme Court's Decision
The Supreme Court held that, in the absence of managerial and supervisory training, triable issues existed as to the effectiveness of the County's anti-harassment policy and as to whether that policy could shield the County from vicarious liability for Bellino's misconduct.
In its seminal 1993 decision in Lehmann v. Toys 'R' Us, 626 A.2d 445 (1993), the New Jersey Supreme Court held that an employer may be held vicariously liable under NJ LAD for a supervisor's misconduct when the employer was negligent in preventing workplace sexual harassment by that individual. The Lehmann Court had explained that the presence of an anti-harassment policy would not automatically shield the employer from claims of hostile environment workplace sexual harassment unless that policy was an effective one.
The Gaines Court emphasized that while Lehmann did not establish "a bright-line rule ... for the standard of negligence required in sexual harassment claims," numerous factors are relevant to this determination, including whether the employer provided "mandatory" anti-harassment training for its supervisors and managers, and also made that training available to all employees in its organization. The Court also rejected the County's argument that Gaines' failure to file a formal complaint pursuant to the anti-harassment policy barred her claims. The Court stated that an employee's inaction must be viewed in the context of whether the employer provided meaningful assistance to the employee who sought to complain about a supervisor's harassment. Concluding that an anti-harassment policy "must be more than the mere words encapsulated in the policy," the Court stated that such a policy must demonstrate an employer's "unequivocal commitment from the top" to preventing workplace sexual harassment. According to the Court, the absence of "effective preventive mechanisms," such as training, will present strong evidence that an employer was negligent in monitoring and preventing workplace sexual harassment. Based upon the record facts, the Court held that Gaines' complaint should not have been dismissed because factual issues existed concerning the effectiveness of the County's anti-harassment policy.
Import of the Court's Ruling
The Gaines decision sends a strong message to employers that the existence of a workplace anti-harassment policy is not sufficient, by itself, to shield an employer from claims of vicarious liability for a supervisor's sexual harassment of a subordinate. An employer will not be absolved of liability simply because an employee failed to utilize the complaint procedures set forth in its published anti-harassment policy. Rather, an employee's failure to file a complaint will be scrutinized by the courts to determine whether the complaint procedure provided "meaningful assistance" to an employee who was the victim of workplace sexual harassment. As a part of that "meaningful assistance," employers should actively and vigilantly enforce its anti-harassment policies by, among other things, providing training to managerial and supervisory employees. Such training will help to demonstrate the employer's "unequivocal commitment" that workplace harassment will not be tolerated.
In light of Gaines, it is recommended that all employers immediately review and assess the effectiveness of their current anti-harassment policies. As part of that review process, employers must assure that both managers and supervisors alike are provided with meaningful sexual harassment training that addresses such core issues as (a) the steps they should follow to respond to employee complaints of harassment, regardless of whether such complaints are formal or informal, (b) the importance of taking all such complaints seriously and responding promptly, (c) the need to refrain from retaliation against a complainant and to preserve confidentiality to the extent possible, (d) how to recognize unlawful harassment, and (e) how to eradicate it. This training not only will increase overall awareness of the employer's policy, but will also facilitate the investigation of sexual harassment complaints by supervisors and employees alike. Although the Gaines Court did not hold that the training of rank-and-file employees is mandatory, it is also recommended that such training be provided to those individuals as well.
While effective complaint procedures may not guarantee that an employer will prevail in a sexual harassment suit, the preventative mechanisms discussed above should go far toward helping the employer to defend against vicarious liability claims based upon a supervisor's or manager's conduct. We recommend that employers seek the advice of competent employment law counsel to review their anti-harassment policies to determine their effectiveness and to implement comprehensive sexual harassment training for managerial, supervisory, and rank-and-file staff.
David I. Rosen is a shareholder and Bryan M. Churgin is an associate in Littler Mendelson's Newark, New Jersey, office. If you would like further information, please contact your Littler attorney at 1.888.Littler, firstname.lastname@example.org, Mr. Rosen at email@example.com, or Mr. Churgin at firstname.lastname@example.org.