January 1, 1900

by Julie Colin

In the past few years, the fastest growing number of complaints in the civil courts of the State of New Jersey have been related to claims of harassment in the workplace. These issues can vary from discriminatory practices to improper termination. Most problematic for New Jersey business owners are suits arising from claims of sexual harassment which are increasing at an alarming rate. Of course, no businessman can protect himself from unfounded claims or unauthorized acts, but all businesses should ensure that they are in complete compliance with our state laws against any form of harassment in order to avoid liability when a claim is made.

Many business owners have taken the initiative to ensure that their workplace establishes a policy against harassment. Such policy is usually found within the office handbook or policy manual. Many business owners mistakenly believe that once a policy against sexual harassment is written into such a manual, they are protected from claims that may be made. Such a belief is not only misplaced, it is dangerous.

The New Jersey Law Against Discrimination was created by the legislature in order to provide even more protection than is provided to all citizens under the Federal Constitution. While the New Jersey law provides protections against many types of discrimination such as age, national origin, and race, it is primarily seen as a tool to provide relief from sexually harassing situations. Over the years, sexual discrimination has been divided into two distinct categories. First, the law prohibits discrimination based on the gender of an individual, and second, the law prohibits discrimination based on sexual advances. Although these two issues are distinct, they are often blended together in claims brought by employees. Often, a female employee will claim that a co-worker treated her differently than he would any other employee based on her gender, and that the disparate treatment included sexual advances.

Employer Responsibilities to Employees

Many employers believe that the policy manual prohibiting such sexual harassment provides a safety net when such claims are made. Our New Jersey courts, however, have become increasingly more protective of the victim, and employers must take affirmative, preventative action beyond a simple written policy to protect against devastating exposure. As recently as 2002, our New Jersey Supreme Court set forth several factors to consider when determining whether an employer could be held liable for the harassment in the workplace. The court found that in addition to a written policy against harassment, an employer must establish a system by which employees clearly are informed of the manner in which a complaint can be voiced. Additionally, an employer is charged with the responsibility of monitoring the workplace to ensure that compliance with its policy is maintained. In order to achieve such compliance, an employer must provide, in addition to written material, training with regard to its intolerance of harassing behavior. Finally, the court found that the employer must demonstrate a commitment from the highest level of management to a policy of a harassment-free workplace.

In devising this criteria, the court emphasized that it is the responsibility of the employer to exercise due care in ensuring a harassment-free workplace for its employees. Such environment extends not only to scenarios involving co-employees, but also to customers and vendors. While the courts have recognized that the employer cannot prevent an unforeseen circumstance where an employee suffers harassment, it is possible for an employer to ensure that its policies against harassment are widely disseminated, implemented and enforced. For example, an employer may be found to be liable for failing to prevent foreseeable harassment by an outside vendor on an employee. Such a circumstance often arises when the vendor is providing a valuable service which an employer is hesitant to forego when a complaint of improper behavior is made by an employee. In this instance, it is incumbent upon the employer to risk its relationship with the vendor in order to protect its employee. Failure to do so may result in liability on the employer, even if the harassment came from an outside source.

Harassment by Customers

Similarly in the retail industry, employers often are hesitant to lose a sale to a customer who has engaged in harassment of a salesperson. Employers must demonstrate a pattern of dedication to its written policy against harassment in the face of such a dilemma. To do otherwise, and ask an employee to ignore improper behavior, or worse, to appear receptive to such behavior, clearly exposes an employer to liability based on New Jersey law. Such policy must be gender neutral. That is, a female customer making unwanted advances to a male salesperson is equally actionable as the more classic scenario. Moreover, same sex advances are equally prohibited and can result in an actionable circumstance. Employers must make it clear to their employees that behavior from any source in the workplace that is sexual in nature and unwanted, is inappropriate and must be reported. Employees must be made clear about their responsibilities in reporting such situations as often they take place with no witnesses present.

Finally, while the trend in New Jersey is to provide more and more protection to the employee with regard to claims of sexual harassment, employers have the right and obligation to conduct an investigation when claims are made. Part of the policy against harassment that is promulgated by an employer must make it clear that the employer shall investigate all claims made and that unfounded claims will be subject to disciplinary measures. While the law in New Jersey is intolerant of sexually harassing behavior, it is equally clear that employees who make unfounded accusations against co-workers, vendors or customers are subject to discipline, including termination. Employers should ensure that employees are aware of their commitment to a harassment- free workplace for all employees, and that unfounded accusations are not to be tolerated.

In order to ensure current compliance with the laws against harassment in New Jersey, it is prudent for all businesses to consult with a professional. Hill Wallack provides services to its business clients with regard to establishing a policy, providing proper mechanisms for reporting and investigation, and ensuring implementation. In order to ensure compliance, Hill Wallack will often provide training to employees and supervisors regarding both their rights and responsibilities. Such training (course), together with periodic updates to employees helps employers ensure that once faced with a claim, they are protected from liability by demonstrating full compliance with current obligations.

Julie Colin is a partner in the General Litigation and the Employment Law Practice Groups. She concentrates her practice in personal injury including products liability, employment discrimination and premises liability with expertise in trial work including jury trials in defense litigation.