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Articles Posted in Sexual Harassment

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A recent decision by New Jersey’s Appellate Division makes it clear that merely having an anti-harassment policy does not insulate employers from sexual harassment lawsuits. The ruling comes on the heels of the New Jersey Supreme Court’s ruling earlier this year in Aguas v. State of New Jersey, which created a new affirmative defense for employers in sexual harassment cases under the New Jersey Law Against Discrimination (“LAD”). I discussed Aguas in my article: Importance of Reporting Sexual Harassment Reinforced by New Jersey Supreme Court.

The Appellate Division ruling involved Anita Jones, who worked for Mott’s LLP as a machine operator. For most of her employment, Ms. Jones was a temporary employee.

According to Ms. Jones, numerous Mott’s employees sexually harassed her. For example, she says the individual who initially trained her repeatedly touched her breasts. She says that when she objected, the harasser yelled at her. She did not report this sexual harassment to anyone because she was just a temporary employee. When she complained to a supervisor about the employee yelling at her, the supervisor promised he would take care of it. However, she alleges that when she complained to the same supervisor several other times he either put his arm around her shoulders or touched her back. She did not object to this harassment because the supervisor warned her that “temps come a dime a dozen and [if] one don’t do what you want, you get another one,” implying he would have her fired if she complained about him.

Ms. Jones further claims her immediate supervisor asked her out on dates, offered her a massage, and made a sexually explicit comment to her while he was moving his hands from his thigh toward his genitals. She also asserts that another employee occasionally touched her shoulder and back, and at one point told her he liked her butt. She did not complain to anyone about these acts of harassment because she was afraid Mott’s would fire her.

Ms. Jones eventually sued. Among other things, she claimed Mott’s was liable for creating a sexually hostile work environment. The trial court dismissed the case, and Ms. Jones appealed.

In Jones v. Dr. Pepper Snapple Group, the Appellate Division reversed.  It explained that the Aguas defense applies only if the employer has an “effective” anti-harassment policy.  It recognized that Mott’s has taken steps to prevent sexual harassment. For instance, its Employee Handbook includes an anti-harassment policy which directs employees who experience sexual harassment to complain either to their supervisors or the Human Resources Department. The handbook also indicates that Mott’s is committed to resolving discrimination and harassment complaints,and  does not tolerate retaliation against employees who make such complaints. However, the court ruled that a jury could find the company’s anti-harassment policy was not effective because it did not provide a copy of the handbook to Ms. Jones until after the harassment stopped, and never provided her any anti-harassment training.

The Appellate Division also noted that an employer can be held liable for harassment committed by one of its supervisors if it fails to exercise reasonable care to prevent and promptly correct the harassment. It noted that if the company had trained Ms. Jones about its anti-harassment policy when it initially hired her, she “may not have endured — or at least may have been able to minimize — the sexual harassment she experienced.”

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In a recent employment law case, Davis v. Husain, the New Jersey Supreme Court held that a judge may not engage in any communication with a member of the jury outside of the presence of the lawyers involved in the case (known as ex parte communications), including discussions after the jury has rendered a verdict. In this case involving a claim of sexual harassment, the jury found plaintiff’s former employer liable for having engaged in sexual harassment. After the verdict was rendered and the jury was dismissed, a juror mentioned to the trial court judge that the defendant had not placed his hand on the Bible when taking the oath before he testified. The conversation between the judge and the juror occurred outside the presence of counsel involved in the case.

The judge later advised the attorneys for both parties of the comment by the juror. In motions filed after the trial, the defendant moved for a new trial. The trial court denied the motion, and the Appellate Division agreed with the trial Court. The defendant then appealed to the New Jersey Supreme Court.

In reaching a decision in the case, the Supreme Court noted that under the Court Rules all communications between a judge and a jury during a trial must be in open court. The Court considered two Appellate Division cases in New Jersey, a civil case and a criminal case. In both of these cases, the Appellate Division expressed disfavor as to the ex parte communications between the judge and jury after the jury reached a verdict.

The Court indicated that it wanted to be clear in terms of the rule and to provide a “bright-line” for judges concerning communications with jurors outside of the involvement and presence of counsel and parties to a litigation. The Court stated specifically, “[p]ost-verdict ex parte communications between the trial court and jurors cannot be countenanced. The informality of such encounters, however benign their intended purpose, creates the possibility for the innocent remark or question to spark an attempt to plumb jurors’ decision-making processes.”   The Court held that all ex parte communications between a judge and juror are prohibited, including post-verdict communications.

Jury in sexual harassment lawsuitThe Court then discussed the facts of the Husain case, noting that as a general matter jury deliberations are to remain secret unless “good cause” can be shown indicating the potential for prejudice during the jury deliberation process. Instances of “good cause” might include circumstances in which it appeared that a juror either communicated to fellow jurors facts outside of those revealed during the trial, or made comments reflecting unlawful prejudice that tainted the jury deliberations.

The case was remanded for the trial court to determine whether the comment made by the juror to the judge post-verdict had any impact on the jury deliberations or the ultimate verdict. In remanding the case, the Court provided that the investigation be conducted by a different judge than the trial judge involved in the case, and that the investigation be narrow to preserve the secrecy of the jury deliberations.

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New Defense to Sexual Harassment Claims

Earlier this week, in Aguas v. State of New Jersey, the New Jersey Supreme Court provided employers a new defense to sexual harassment claims under the New Jersey Law Against Discrimination (“LAD”).

Specifically, the Court adopted a defense that previously applied only in federal cases. That defense is often referred to as the “Faragher/Ellerth defense,” from the two United States Supreme Court cases that initially adopted the defense under federal law: Faragher v. City of Boca Raton and Burlington Industries v. Ellerth.

To understand this defense it is important to understand two ways in which employers can be held liable for sexual harassment committed by one of their employees. One way is if the victim of the harassment proves the employer was negligent. This is usually accomplished by showing the employer did not have an anti-harassment policy, or that its policy was not effective.

A second way employers can be liable for harassment committed by their employees is called vicarious liability. Vicarious liability can be proved by showing the employer put the harasser in a position of authority. In other words, it holds employers responsible for harassment committed by their supervisors.

The Faragher/ Ellerth defense applies in limited circumstances. It applies only to the vicarious liability theory, not to the negligence theory described above. It also does not apply when the harassment led the victim of the harassment to experience a tangible employment action such as being fired, demoted, suspended, or forced to resign.

Sexual Harassment In The OfficeBut when the Faragher/Ellerth defense does apply, it provides the employer a defense to liability. Specifically, under this this defense an employer cannot be held responsible for sexual harassment if it can prove:

  1. It “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”; and
  2. The victim of the harassment “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

Broader Definition of “Supervisor”

The Aguas case is not all bad news for employees. It also expands the definition of a “supervisor” under the LAD.

In interpreting the primary federal anti-discrimination law, Title VII, the United States Supreme Court has ruled that a supervisor is someone who has the authority to make decisions regarding hiring, firing, promotions, demotions, discipline, compensation, or other tangible employment actions.

Fortunately, the New Jersey Supreme Court declined to apply this relatively narrow definition under the LAD. Instead, it defined supervisors not only to include individuals who have the authority to make tangible employment decisions, but also ones who have the authority to impact the employee’s day-to-day work, such as by giving out job assignments.

The Bottom Line

In light of the new defense to harassment claims created by the Aguas case, it is now even more important that employees who experience sexual harassment at work should complain to the company’s human resources department or someone else designated to receive complaints.

Of course, there are times when it is reasonable for an employee not to make an internal complaint about harassment, such as when the employee does not even know there is a policy, has been threatened with retaliation if she makes a complaint of harassment, or has evidence that the policy is not effective. However, failing to make a complaint can jeopardize a potential sexual harassment case.

In short, Aguas can leave employees in a difficult position. They can complain about harassment and risk that they will face retaliation, or they can choose not to complain and risk they will not be able to pursue a sexual harassment lawsuit. Accordingly, if you have experienced a hostile work environment at your job, we highly recommended that you consult with an experienced employment lawyer to help you decide if and how you should report the harassment you have experienced.

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A recent federal case from the District of New Jersey denied an employer’s motion for summary judgment on an employee’s sexual harassment case, paving the way for a jury trial. In the process, the court provided a good overview of what an employee needs to prove to be able to survive such a motion and get a case to a jury.

Joan Lane worked as a Material Handler for Sears Logistics Services, Inc. She was the only female who held this role on her floor. She claims the Material Handler Lead for her shift, Louis Fine, engaged in unwelcome conduct toward her including (1) calling her a “b*tch;” (2) calling her “dumb;” (3) “inviting her to [his] penis;” (4) claiming “all [she] wants is my d*ck;” (5) telling her to sit on his face; (6) making sexual gestures to her; and (7) claiming a temporary employee wanted her body. Ms. Lane eventually filed a lawsuit against her employer claiming Mr. Fine created a sexually hostile work environment for her in violation of the New Jersey Law Against Discrimination (LAD).

Sexual HarassmentAs the court explained, in a sexual harassment case the employee has to prove the conduct toward her (1) would not have occurred but for her gender, and (2) was severe or pervasive (frequent) enough (3) to make a reasonable woman believe the terms and conditions of her employment were changed and her work environment is hostile or abusive. The judge found Ms. Lane has enough evidence to meet each of those requirements. He indicated that even though Mr. Fine denied Ms. Lane’s allegations, for purposes of deciding a motion for judgment the court has to assume all of her testimony and evidence is true because it is the jury’s job to decide who is telling the truth. The judge further recognized that Ms. Lane’s evidence could support the conclusion that she was the victim of severe or pervasive sexual harassment. Moreover, he found a jury could conclude the harassment occurred because of her gender since she was the only female Material Handler on her floor and some of Mr. Fine’s conduct toward her was sexual in nature.

In addition, the court ruled that Sears Logistics could be held liable for Mr. Fine sexually harassing Ms. Lane. One of the most common reasons a company can be liable for harassment committed by one of its employees is if the harasser is a supervisor. In this context, a supervisor is someone who “has the authority to hire, fire, discipline, control employees’ wages or control employees’ schedules,” or someone the victim of the harassment reasonably believes has that authority. The court found a jury could conclude Mr. Fine was Ms. Lane’s supervisor since she testified he told her he was responsible for directing her daily work environment.

The court indicated a second way a jury can hold Sears Logistic responsible for Mr. Fine sexually harassing Ms. Lane is based on evidence the company did not have an effective anti-harassment policy and its response to Ms. Lane’s complaints about Mr. Fine’s harassment was inadequate. Under New Jersey Law, a company that does not have a sufficient anti-harassment policy can be held liable for harassment committed by its employees. Ms. Lane presented evidence that the company did not even bother to interview her as part of its investigation into her harassment complaint. In addition, there is evidence suggesting the company never disciplined Mr. Fine for his behavior toward her. Accordingly, in Jane v. Sears Logistic Services, Inc., the District Court denied the employer’s motion for summary judgment so a jury can decide whether the company is liable for sexual harassment.

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Earlier this month, the United States Court of Appeals for the Second Circuit issued an unpublished summary order which reinstates an employee’s sexual harassment claim that had been dismissed.  However, in a separate published opinion issued on the same day the court upheld the dismissal of Ms. Castagna’s related tort claims because she did not file her lawsuit until after the statute of limitations had expired.

Boss shouting at assistantPatricia Castagna worked for Majestic Kitchens, Inc., as its receptionist.  She alleges Bill Luceno, who is the owner of the company and was Ms. Castagna’s supervisor, harassed her because of her sex in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (“NYSHRL”).  Prior to the appeal, the trial court had dismissed those claims because Ms. Castagna admitted Mr. Luceno treated virtually all of the company’s employees poorly.

In support of her sexual harassment claims, Ms. Castagna claims Mr. Luceno physically threatened her and two other female employees with physical violence, but never physically threatened any male employees.  For example, she claims that on one occasion he screamed and cursed before he shoved her computer monitor toward her, which caused her to fear for her safety. Although she acknowledges Mr. Luceno’s had outbursts toward both male and female employees of Majestic, she claims the most extreme outbursts were directed toward women, and that during some of his outbursts he referred to women as “bitch[es].”

In reversing the trial court, the Second Circuit explained that threats of physical violence can be very strong evidence to support a hostile work environment claim.  It also indicated the fact that Mr. Luceno only threatened women supported an inference that he was targeting them because of their gender.  It ultimately found all of the evidence, considered together, would permit a reasonable jury to conclude that Ms. Castagna’s workplace was hostile and abusive because of her gender.  Accordingly, the court issued a summary order which reversed the trial court’s ruling that had granted summary judgment to Majestic.

The appellate court also reinstated Ms. Castagna’s constructive discharge claim, and asked the trial court to consider it on its merits.  The lower court had dismissed that claim on the basis that there is a higher standard to prove a constructive discharge than to prove an harassment claim, and it had found there was not enough evidence to support an harassment claim.  But since the Second Circuit disagreed and found there is enough evidence to support a hostile work environment claim, it instructed the trial court to determine whether there also is enough evidence to support a constructive discharge claim.

However, in a separate opinion the Second Circuit upheld the dismissal of Ms. Castagna’s claims of intentional infliction of emotional distress, assault, and battery because she filed them after the one year statute of limitations had expired.  It ruled that even though Ms. Castagna filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) within 300 days after the harassment occurred, and her tort claims are based on the same facts as her harassment claim, filing with the EEOC does not toll the one year statute of limitations on other claims.  Rather, if Ms. Castagna wanted to pursue her tort claims she needed to file a lawsuit within one year after the relevant events occurred instead of waiting until the EEOC finished its investigation into her harassment claim.  Accordingly, in a formal published opinion in Castagna v. Luceno, the court affirmed the trial court’s order dismissing Ms. Castagna’s tort claims.

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Earlier this month, a federal judge ruled that neither the New York Human Rights Law (NYHRL) nor the New York City Human Rights Law (NYCHRL) protect unpaid interns from a sexually hostile work environment.

New York Law Does Not Protect Unpaid Interns from Sexual Harassment.jpgLihuan Wang worked as an unpaid intern for Phoenix Satellite TV US, a company that produces Chinese language television news programs in the United States. She alleges one of the company’s bureau chiefs, Zhengzhu Liu, invited her to talk to him about her job performance after a group lunch meeting, and then convinced her to go to his hotel room based on the excuse he needed to drop off some personal belongings. During the car ride to the hotel Mr. Liu made Ms. Wang extremely uncomfortable by discussing the sexual prowess of a black man who had dated a woman he knew. In the hotel he complemented Ms. Liu’s eyes before bringing her to his room. Once in his hotel room he asked her why she is so beautiful, threw his arms around her, attempted to kiss her, and squeezed her buttocks before she left.

After Ms. Wang rejected Mr. Liu’s advances, he suddenly stopped showing any interest in hiring her as an employee, and claimed Phoenix could not hire her because of a supposed “visa quota.” When Ms. Wang subsequently asked Mr. Liu about a potential job with Phoenix, he invited her to go to Atlantic City with him for the weekend, supposedly to discuss job opportunities. Ms. Wang declined his invitation and gave up on the possibility of a paid position with Phoenix.

Ms. Wang eventually filed a lawsuit in federal court alleging sexual harassment and retaliation in violation of both the NYHRL and the NYCHRL. However, in Wang v. Phoenix Satellite TV US the United States District Court for the Southern District of New York dismissed her hostile work environment claim.

Ms. Wang acknowledged the NYHRL applies only to “employees,” rather than unpaid interns. However, she argued the NYCHRL is much broader and applies to all individuals whose work is controlled by the company, whether or not they are paid. She relied on a previous case which recognizes the company’s right to control the individual’s work is the primary factor to determine whether she is an employee of a particular employer. The court rejected her argument, finding the right of control is used to determine which entity is an individual’s employer, not to determine whether someone is an employee at all.

However, the court did not dismiss Ms. Wang’s claim that Phoenix failed to hire her as an employee. It is, of course, unnecessary to prove you are an employee to establish a failure to hire claim since those claims are always brought by potential employees rather than actual employees. The court found there was enough evidence to support the conclusion that the company refused to hire Ms. Wang for a vacant position in violation of both the NYHRL and the NYCHRL. While the ruling is not entirely clear, it appears Ms. Wang’s remaining claims assert that Phoenix did not hire her because she refused to give into Mr. Liu’s sexual advances, and allege this constitutes quid pro quo sexual harassment claim and unlawfully retaliation.

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Earlier this year, the United States Court of Appeals for the Second Circuit clarified how the New York City Human Rights Law (“NYCHRL”) applies to a sexual harassment claim. In the process, the court ruled that Renee Mihalik can proceed with her case against her former employer, Credit Agricole Cheuvreux North America, Inc.

New York City Human Rights Law and sexual harassment.jpgMs. Mihalik, a resident of Hoboken, New Jersey, worked for Cheuvreux in New York City. She claims she experienced sexual harassment from Cheuvreux’s Chief Executive Officer, Ian Peacock. More specifically, she alleged Mr. Peacock ran the office like a “boys’ club,” made sexually suggestive comments, and propositioned her for sex twice. Ms. Mihalik sued Cheuvreux for gender discrimination in violation of the NYCHLR.

Last year, the United States District Court for the Southern District of New York dismissed Ms. Mihalik’s case. It ruled there was not enough evidence to support a sexual harassment claim. But on appeal, the Second Circuit disagreed. It applied an earlier state court case which recognizes the NYCHRL is Broader than State and Federal Anti-Discrimination Laws, and reversed the decision. The NYCHRL was amended in 2005 to require it to be “construed liberally” to accomplish” its “uniquely broad and remedial purposes” regardless of what New York State and federal anti-discrimination laws say.

More specifically, under both federal and New York State law, to be legally actionable sexual harassment has to be severe or frequent. But that is not true under the NYCHLR. Rather, an employee only has to show she was treated “less well” than other employees because of her gender.

At the same time, the NYCHRL cannot be interpreted as a “general civility code,” and does not create a legal claim for every “overbearing or obnoxious boss” unless the boss’s conduct is at partially due to the employee’s gender (or another legally prohibited factor, such a race, age or disability). As a result, if an employee proves her employer treated her worse because of her gender, the company can avoid liability if it proves its conduct was merely “petty slights and trivial inconveniences.” In making this determination, a court has to consider all of the circumstances, including the context in which the alleged discriminatory conduct occurred. Depending on the situation, even a single discriminatory remark can be actionable under the NYCHRL.

Applying these standards, in Mihalik v. Credit Agricole Cheuvreux North America, Inc. the Second Circuit ruled that Ms. Mihalik’s must be sent back to the district court so she can have a trial. For example, it found there is evidence that men at Cheuvreux objectified women by looking at pornography, discussing trips to strip clubs, rating the appearance of female employees, and commenting about women’s bodies. It also found evidence that Mr. Peacock told Ms. Mihalik that men should be respected because they are “male” and “more powerful” than women. There also is evidence that Mr. Peacock sexually propositioned Ms. Mihalik twice. The court ruled that if a jury believes this evidence, it can conclude that Cheuvreux treated Ms. Mihalik worse because she is a woman, and the discriminatory mistreatment was more than petty slights or trivial inconveniences.

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A question that often comes up in sexual harassment cases is whether you can rely on harassment you learned about secondhand to help prove your case. For example, can you use the fact that one of your coworkers told you that someone else made sexually offensive comments about you to help prove you worked in a sexually hostile work environment?

Sexual Harassment - secondhand evidence.jpgTo prove a sexual harassment case, you need to show you experienced conduct because of your gender that was severe (bad) or pervasive (frequent) enough to make a reasonable woman believe the conditions of her employment were altered and her working environment was hostile or abusive. In determining whether your workplace was sufficiently hostile or abusive, a judge or jury is supposed to consider all of the circumstances, including how frequently the discriminatory conduct occurred, how severe it was, whether it was physically threatening or humiliating, and whether it unreasonably interfered with your job performance.

There are many cases that recognize an employee can rely on secondhand information in a sexual harassment case for certain purposes. For instance, you can rely on evidence that other women were harassed to help show the treatment you experienced was because of your gender, rather than motivated by something else. That is true even if you did not learn about the harassment the other women experienced until after you left your job.

But can you consider evidence of discriminatory conduct you learned about secondhand to prove your workplace was hostile? Most federal courts that have considered the issue have ruled that as long you were aware of the harassment when you were working for the company, you can use evidence of harassment you learned about from someone else to prove that your work environment was hostile. This includes the United States Courts of Appeals for the Second, Fourth, Sixth, and Seventh Circuits, as well as numerous District Court decisions including the District of New Jersey. As a result, for those of you in New York State, at least assuming your case is in federal court, evidence of harassment you learned about secondhand should be available to help prove your workplace was hostile.

However, there is language in a 2008 New Jersey Supreme Court opinion, Godfrey v. Princeton Theological Seminary, which says that when proving her work environment was hostile, a woman must rely on “evidence of bad conduct of which she has firsthand knowledge.” If interpreted literally, that could mean a plaintiff cannot rely on evidence of harassment she learned about secondhand, even if it actually contributed to make her work environment hostile. But in Godfrey, since the harassment occurred before the employees who brought the lawsuit started working for the employer, it was neither directed at nor witnessed by them. As a result, it is not surprising the court found the women could not rely on this evidence to prove their work environment was hostile.

Given New Jersey’s strong public policy in favor of prohibiting sexual harassment from the workplace, I doubt the New Jersey Supreme Court intended to rule that an employee can never rely on harassment she learned about second hand. Rather, evidence of harassment that you learned about secondhand should be relevant as long as it actually contributed to making your work environment hostile. Of course, that will not prevent employers from arguing that this type of evidence is inadmissible under Godfrey.

For more information about the Godfrey case, please read our previous article: New Jersey Supreme Court Clarifies Sexual Harassment Standard: Repeatedly Asking for Dates is Not Sexual Harassment.

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When an employee brings a harassment claim under federal law, one element of her claim is that she was harmed by the harassment. The Third Circuit Court of Appeals recently recognized that an employee can meet that requirement even though she personally sent emails containing sexual jokes at work.

The employee in question, Shannon Mandel, worked for M&Q Packing Corp. as an Inside Sales and Customer Relations Coordinator. She alleges she experienced sexual harassment including:

    sexual harassment of women at work.jpg

  • Calling her “woman,” “darling,” “fluffy,” “missy,” “hon,” “toots,” “too female;” and “too emotional;”
  • Commenting about her body, clothing, and physical appearance;
  • Paying her less than her male peer;
  • A male manager telling her a meeting would take place at his house, and they would conclude their part of the meeting in the morning;
  • Another male supervisor indicting he fantasizes about her while having sex with his wife; and
  • A third male manager asking her on dates even after she told him she was not interested

Ms. Mandel resigned shortly after a fourth male manager called her a “bitch.”

Previously, the District Court had dismissed Ms. Mandel’s sexual harassment claim, finding there was not enough evidence for a jury to conclude she was harmed by the harassment. It relied heavily on the fact that Ms. Mandel frequently used vulgarity and sent emails containing sexual jokes at work. The District Court found this behavior demonstrated Ms. Mandel’s “casual ease with this type of workplace behavior.” While the court recognized that did not necessarily mean Ms. Mandel had not been harmed by the harassment she experienced, it also concluded she had no evidence she had experienced emotional distress as a result of the harassment, or that the harassment made it more difficult for her to perform her job. It also indicated the only time Ms. Mandel complained about the harassment was after she was called a “bitch,” and she made that complaint to a coworker rather than to a supervisor or the Human Resources Department.

In Mandel v. M&Q Packaging Corp., the Third Circuit strongly disagreed. It indicated it was “disturbed” by the District Court’s conclusion that no reasonable jury could find Ms. Mandel was harmed by the harassment. It explained that even though Ms. Mandel engaged in unprofessional conduct by using vulgarity and sending sexual jokes, the harassment she experienced was “often worse and apparently uninvited.” Further, it disputed the District Court’s conclusion that Ms. Mandel only complained about one incident of harassment. In addition, it recognized that Ms. Mandel had stated under oath that the harassment caused her harm. Accordingly, it found a reasonable jury could conclude that Ms. Mandel was harmed by the sexual harassment, and reversed the District Court’s decision to dismiss her sexual harassment claim.

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Earlier this month, New Jersey’s Appellate Division reversed a trial court’s decision to dismiss two employees’ sexual harassment case against their employer, the Mercer County Youth Detention Center. In Wallace v. Mercer County Youth Detention Center, the Appellate Division ruled that a jury needs to decide whether the employer’s anti-harassment policy was effective. Employers can be held liable under the New Jersey Law Against Discrimination (LAD) for sexual harassment committed by a coworker if the employer did not have an effective anti-harassment policy.

Moneck Wallace and Tina Stewart, two female employees who worked for the Mercer County Youth Detention Center, claim a male coworker, Jerel Livingston, sexually harassed them. Ms. Wallace and Ms. Stewart both complained about the sexual harassment. After conducting an investigation, the employer concluded that there was insufficient evidence to support their claims. The two women then filed a sexual harassment lawsuit.

Sexual Harassment at Work.jpgThe trial judge dismissed the case even though it found that Ms. Wallace and Ms. Stewart had enough evidence to prove that Mr. Livingston sexually harassed them. However, it concluded that their employer could not be held liable for the harassment because the alleged harasser was not a supervisor, and Ms. Wallace and Ms. Stewart did not have any evidence that their employer was aware of the harassment but failed to respond to it.

The Appellate Division disagreed with the trial court’s decision to dismiss the case. It explained that an employee might be able to prove her employer is liable for harassment committed by a supervisor or coworker if the employer did not have an effective anti-harassment policy.

The Appellate Division concluded that Ms. Wallace and Ms. Stewart had enough evidence to allow a jury to conclude that Mercer County did not have an effective anti-harassment policy. This included evidence that it:

  1. Did not effectively inform its employees about its sexual harassment policy;
  2. Did not provide adequate anti-harassment training to its employees;
  3. Did not effectively enforce its anti-harassment policy;
  4. Did not conduct a sufficient investigation into the alleged sexual harassment;
  5. Did not use clear criteria when it evaluated whether the sexual harassment claim was substantiated; and
  6. Did not have effective procedures to evaluate whether its sexual harassment policy was effective.

As a result, the Appellate Division sent the case back for a trial at which a jury will decide those issues.

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