Anti-Harassment Policy and Training: More Important Than Ever

NJ Extends Employer Obligation

The Supreme Court of New Jersey seems to have taken the obligation that employers have to prevent harassment in the workplace one step further. Gaines v. Bellino, 173 N.J. 301, 901 A.2d 322 (2002), involved a complaint of harassment made by a female corrections officer against Hudson County under New Jersey's anti-discrimination statute. The essence of the officer's complaint was that her informal efforts to resolve the harassment situation were ignored by her immediate supervisor, as well as by other senior management officials, and that had she followed the county's formal complaint procedures, she never would have been believed. The trial court granted summary judgment in favor of the county. The trial court reasoned that the county had an anti-harassment policy which, among other things, allowed the employee to bypass his or her supervisor if it was believed that the supervisor had engaged in wrongful conduct; publicized the policy through posters; promulgated the policy through successive editions of employee handbooks, conducted training for certain of its employees; and eventually suspended the offending supervisor.

However, the Supreme Court of New Jersey held that the officer was entitled to have her claims heard by a jury, since the record contained significant factual issues in regard to the effectiveness of the county's anti-harassment program. In arriving at its determination, the supreme court emphasized the following: 1) A number of the employees, including the offending officers and other members of the management team, had not received harassment training; 2) The provision of the employee handbook dealing with harassment had not been specifically pointed out to a number of employees; 3) Several members of senior management who learned of the incident initially made light of it and mocked the plaintiff ' and more troubling, stated that even if the plaintiff claimed to have been raped by more than one individual, her complaint would have been ignored; and 4) Other officers believed that had a formal report about the incident been filed by the officer, it would not have been believed.

A Reminder to Employers

In a sobering reminder to employers, the court held that employers may be vicariously liable for sexual harassment in the workplace if the anti-harassment policy is no more than 'mere words'; that is, if its effectiveness at preventing harassment and protecting employees is undermined to the point that the employers are not protected from liability. In other words, employers that fail effectively to communicate an anti-harassment policy and/or fail to monitor, apply, or enforce it, may not be able to insulate themselves from liability for harassment lawsuits.

Although it is not yet clear whether other courts will go quite as far as the New Jersey court has gone, the trend in the case law seems clear: Merely having an anti-harassment policy is not sufficient to protect employers from liability. The lessons of Gaines and the earlier U.S. Supreme Court decisions are direct. Employers that are truly committed to eliminating harassment in the workplace must do the following:

• Establish an effective, useful and practical anti-harassment policy;
• Ensure that the policy prohibits sexual harassment as well as harassment based upon race, disability, religion or any other protected category;
• Ensure that the policy provides the employee with have multiple methods of complaint; eg, an employee should be able to complain not only to his/her immediate supervisor, but to other members of the senior management team, as well as the director of human resources, particularly if the supervisor is the offending party;
• Clearly communicate within the policy the company's zero tolerance toward harassment of any kind;
• Describe within the policy what constitutes the different types of prohibited harassment;
• State in no uncertain terms that all complaints will be investigated thoroughly;
• Assure employees that there will be no retaliation against those who make complaints;
• Publish and distribute the anti-harassment policy on a regular basis;
• Conduct harassment training on a regular basis for all employees, supervisors and managers and collect written documentation affirming that they attended the harassment training, agree to abide by the policy, and understand fully the complaint procedures;
• Investigate all claims of harassment promptly and thoroughly;
• Evaluate supervisors and managers to make sure they are monitoring, applying and enforcing the policy;
• Screen applicants for supervisory jobs to determine if they have a history of engaging in harassment; and
• Maintain harassment complaint records and check, among other things, to determine whether any patterns of harassment by the same individual exist.

In short, words contained in the harassment policy must be matched by the important 'deeds' that need to be satisfied to create and maintain an effective harassment policy. The old maxim ' an ounce of prevention is worth a pound of cure ' is perhaps never truer than when it comes to taking appropriate measures to reduce the likelihood of harassment claims. Employers that consistently and sincerely take this maxim to heart and regularly act upon it by: 1) conducting harassment training; and 2) applying and enforcing their anti-harassment policy can consistently achieve benefits that translate far beyond the bottom line.

Marc R. Engel is a shareholder at Lerch, Early & Brewer, Chartered, of Bethesda, MD, where he is a member of the firm's employment and litigation groups. He regularly advises clients on a variety of employment issues, and counsels clients on reducing the likelihood of employment claims. He also litigates employment and business disputes.

A recent decision by the Supreme Court of New Jersey serves as a powerful reminder to employers that in order to attempt to insulate themselves from liability for harassment claims, an anti-harassment policy must be more than the 'mere words' contained therein. Rather, the anti-harassment policy must be effective, and the effectiveness of the policy is measured, among other things, by whether the policy is: 1) properly communicated to employees through meaningful anti-harassment training; and 2) properly monitored, applied and enforced.

What the Supreme Court Says

Most employers are aware that the responsibility for eliminating sexual harassment in the workplace resides with them. The Supreme Court has made this clear ' and workplace training is an important component in preventing sexual harassment claims. In 1998, the Supreme Court issued two decisions that dramatically impacted employers' ability to protect themselves from sexual harassment-related lawsuits. In Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the Supreme Court held that an employer can be liable, even though it is not negligent or otherwise at fault, for a hostile work environment created by a supervisor. An employer may defend such a lawsuit, provided that there has been no tangible adverse employment action taken against the employee, by establishing that it exercised reasonable care to prevent and promptly correct any harassment, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Cases that have been decided since these Supreme Court rulings have emphasized the importance of effectively communicating the company's sexual harassment policy to employees; this is routinely done through sexual harassment training.

NJ Extends Employer Obligation

The Supreme Court of New Jersey seems to have taken the obligation that employers have to prevent harassment in the workplace one step further. Gaines v. Bellino , 173 N.J. 301, 901 A.2d 322 (2002), involved a complaint of harassment made by a female corrections officer against Hudson County under New Jersey's anti-discrimination statute. The essence of the officer's complaint was that her informal efforts to resolve the harassment situation were ignored by her immediate supervisor, as well as by other senior management officials, and that had she followed the county's formal complaint procedures, she never would have been believed. The trial court granted summary judgment in favor of the county. The trial court reasoned that the county had an anti-harassment policy which, among other things, allowed the employee to bypass his or her supervisor if it was believed that the supervisor had engaged in wrongful conduct; publicized the policy through posters; promulgated the policy through successive editions of employee handbooks, conducted training for certain of its employees; and eventually suspended the offending supervisor.

However, the Supreme Court of New Jersey held that the officer was entitled to have her claims heard by a jury, since the record contained significant factual issues in regard to the effectiveness of the county's anti-harassment program. In arriving at its determination, the supreme court emphasized the following: 1) A number of the employees, including the offending officers and other members of the management team, had not received harassment training; 2) The provision of the employee handbook dealing with harassment had not been specifically pointed out to a number of employees; 3) Several members of senior management who learned of the incident initially made light of it and mocked the plaintiff ' and more troubling, stated that even if the plaintiff claimed to have been raped by more than one individual, her complaint would have been ignored; and 4) Other officers believed that had a formal report about the incident been filed by the officer, it would not have been believed.

A Reminder to Employers

In a sobering reminder to employers, the court held that employers may be vicariously liable for sexual harassment in the workplace if the anti-harassment policy is no more than 'mere words'; that is, if its effectiveness at preventing harassment and protecting employees is undermined to the point that the employers are not protected from liability. In other words, employers that fail effectively to communicate an anti-harassment policy and/or fail to monitor, apply, or enforce it, may not be able to insulate themselves from liability for harassment lawsuits.

Although it is not yet clear whether other courts will go quite as far as the New Jersey court has gone, the trend in the case law seems clear: Merely having an anti-harassment policy is not sufficient to protect employers from liability. The lessons of Gaines and the earlier U.S. Supreme Court decisions are direct. Employers that are truly committed to eliminating harassment in the workplace must do the following:

• Establish an effective, useful and practical anti-harassment policy;
• Ensure that the policy prohibits sexual harassment as well as harassment based upon race, disability, religion or any other protected category;
• Ensure that the policy provides the employee with have multiple methods of complaint; eg, an employee should be able to complain not only to his/her immediate supervisor, but to other members of the senior management team, as well as the director of human resources, particularly if the supervisor is the offending party;
• Clearly communicate within the policy the company's zero tolerance toward harassment of any kind;
• Describe within the policy what constitutes the different types of prohibited harassment;
• State in no uncertain terms that all complaints will be investigated thoroughly;
• Assure employees that there will be no retaliation against those who make complaints;
• Publish and distribute the anti-harassment policy on a regular basis;
• Conduct harassment training on a regular basis for all employees, supervisors and managers and collect written documentation affirming that they attended the harassment training, agree to abide by the policy, and understand fully the complaint procedures;
• Investigate all claims of harassment promptly and thoroughly;
• Evaluate supervisors and managers to make sure they are monitoring, applying and enforcing the policy;
• Screen applicants for supervisory jobs to determine if they have a history of engaging in harassment; and
• Maintain harassment complaint records and check, among other things, to determine whether any patterns of harassment by the same individual exist.

In short, words contained in the harassment policy must be matched by the important 'deeds' that need to be satisfied to create and maintain an effective harassment policy. The old maxim ' an ounce of prevention is worth a pound of cure ' is perhaps never truer than when it comes to taking appropriate measures to reduce the likelihood of harassment claims. Employers that consistently and sincerely take this maxim to heart and regularly act upon it by: 1) conducting harassment training; and 2) applying and enforcing their anti-harassment policy can consistently achieve benefits that translate far beyond the bottom line.

Marc R. Engel is a shareholder at Lerch, Early & Brewer, Chartered, of Bethesda, MD, where he is a member of the firm's employment and litigation groups. He regularly advises clients on a variety of employment issues, and counsels clients on reducing the likelihood of employment claims. He also litigates employment and business disputes.