February 17, 2015:
Labor and Employment Alert
The recent verdict in favor of the plaintiff in the Marchuk
v. Faruqi & Faruqi case reminds us that employers must take their
obligation seriously to provide a harassment-free work environment. Employers,
particularly in New Jersey, are often counseled that failure to implement an
effective anti-harassment policy can subject the company to independent
liability for illegal harassment in the workplace. Employers are also aware
that they can be held vicariously liable for illegal harassment committed by
their supervisors. However, many employers are not aware that maintaining
effective anti-harassment policies, having adequate complaint procedures and
taking prompt remedial action in response to complaints can avoid litigation
and provide a safe haven from vicarious liability for alleged supervisory
harassment. This protection should serve as motivation for employers to
regularly publish an effective anti-harassment policy and complaint procedure
and conduct regular anti-harassment training.
As early as 2002, the New Jersey Supreme Court ruled that
“if an employer has exercised due care in acting to prevent a . . .
discriminatory hostile work environment, vicarious liability should not attach.
The establishment of an effective anti-harassment workplace policy and
complaint mechanism evidences an employer’s due care and may provide
affirmative protection from vicarious liability.” Gaines v. Bellino.
More recently, in Jorrin v. Lidestri Foods, Inc., the New Jersey
District Court granted summary judgment to the employer for several reasons,
including that Lidestri Foods had an effective anti-harassment and complaint
procedure and took prompt effective action to investigate the plaintiff's claim
of sexual harassment. The court specifically articulated four reasons that the
anti-harassment policy was adequate. First, the court found the employer
published the anti-harassment policy through the hiring and orientation
process.
Second, the company provided employees with a
"practical and effective" grievance process by which they could
report complaints to any supervisor or human resources professional in the
company. Third, employees were provided training and review of the
anti-harassment policy during orientation. Finally, the company provided supplemental
training regarding the anti-harassment policy to supervisors and management
employees.
In determining whether the grievance process is
"practical and effective," the court will review the specific facts
of the investigation at issue. In previously published opinions, courts have
acknowledged that having an effective anti-harassment policy prevented
liability for supervisory harassment, but have determined it was a question of
fact for a jury whether or not an employer had an effective anti-harassment
policy. However, the Jorrin court concluded that there could be no
question that the Lidestri Foods anti-harassment policy was adequate because
the company commenced its investigation into the plaintiff's complaint the same
day it was received and completed the investigation, including interviews of 10
employees, within an eight-day period. Within one day of completing its
investigation, a determination was made to terminate the alleged harasser and
the termination was implemented immediately. The entire process was completed
within 11 days of receiving the plaintiff's complaint letter. While the
"effectiveness" of a complaint procedure is a factual inquiry, a
swift and thorough approach to investigating grievances can be found to be
adequate as a matter of law and insulate a company against vicarious liability
for supervisory harassment.
Therefore, don't delay. Regularly publishing your
anti-harassment policy to your employees, training employees regarding the
policy and acting swiftly to investigate allegations of harassment can insulate
your company from liability against some complaints regarding illegal
harassment in the workplace. Please contact our office if you need assistance
drafting an anti-harassment policy, recommendations regarding investigation
procedures or policies or employee training.
For more information about this alert, please contact Eileen Oakes Muskettat
609.572.2355 or emuskett@foxrothschild.com or any member of the
firm’s Labor & Employment Department.
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Source: Fox
Rothschild
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