Defense Digest 3/09: The Ever Expanding New Jersey Law Against Discrimination Act
By Victoria A. Cabalar, Esq.*
New Jersey - Civil Rights
In a case of first impression, on September 18, 2008, the New Jersey Appellate Division held that constructive knowledge of coworker sexual harassment premised upon a negligence-based theory of direct liability, or through agency, may be imputed to an employer where the employer has failed to have in place effective and well-publicized sexual harassment policies that provide employees with reasonable avenues for voicing sexual harassment complaints. Cerdeira v. Martindale-Hubbell, 402 N.J.Super. 486 (App. Div. 2008).
The plaintiff, Robin Cerdeira, filed a complaint under the New Jersey Law Against Discrimination Act in the Superior Court of New Jersey in which she alleged she became the subject of sexually harassing conduct directed towards her by a coworker. The plaintiff alleged that the employer, Martindale, promoted a hostile work environment which constituted sexual harassment in violation of the LAD by negligently failing to have an effective anti-discrimination policy in place. The trial court found that, while an employer's failure to have an effective anti-discrimination policy in effect may inflict liability on an employer when there is supervisor/employer type harassment, it does not impose legal responsibility on an employer when a plaintiff's claims arise in the context of coworker harassment, of which the employer had no actual knowledge. On the basis of this holding, the trial court granted Martindale's motion for summary judgment. The plaintiff appealed, contending the trial court erred in dismissing her complaint in light of Martindale's negligence in failing to have an effective sexual harassment policy in place.
The plaintiff began working for Martindale in 1983 as a typist and never held a managerial position. In 2000, she was promoted to senior analyst and remains in that position today. Her duties as a senior analyst include inputting information on the computer system, mail processing, and signing off on files. Beginning in 2001, the plaintiff became the frequent subject of sexually harassing behavior by a coworker, Melvin Bowers. Bowers worked for Martindale in a separate department from the plaintiff as a programmer analyst. He was not the plaintiff's supervisor, nor was he a manager in his own department. The plaintiff testified, however, that she felt Bowers did have authority over her and was very close to her supervisor, Barbara Dorner, whom the plaintiff acknowledged was also her friend in addition to her supervisor. The plaintiff continued to endure sexually harassing conduct for a period of two years, which included receiving from Bowers sexually explicit pictures of "[n]aked women, people having sex, catalogs of Frederick's of Hollywood, Victoria Secret, [and] people having oral sex." Bowers would also telephone the plaintiff and begin masturbating. He once left a bra, a thong, perfume, and a camera at the plaintiff's workstation and informed her that he wanted her to take pictures of herself for him. The plaintiff never reported Bowers' conduct to anyone but another coworker. This coworker never encouraged the plaintiff to report the behavior, nor did she inquire of the plaintiff why she did not report it.
On July 23, 2003, a mail room supervisor, Rico West, witnessed an explicit photograph sent from Bowers to the plaintiff as he walked by the plaintiff's desk. West insisted that the plaintiff report Bowers, stating that if she did not, he would have to or risk losing his job. The plaintiff informed West she would do so, after she spoke to her husband. The plaintiff informed her husband of the incidents over the weekend, and on the following Monday, the plaintiff told Dorner, her supervisor, about the sexual harassment. Dorner immediately contacted the Director of Human Resources, Ed Bigelow, who met with the plaintiff fifteen minutes later. Bigelow then met with other supervisory employees to discuss Bowers' conduct, and a decision was made to immediately suspend him. Two days later Mr. Bowers was fired. Martindale informed the plaintiff to take off as much time as she needed, and the plaintiff remained on a paid leave with full benefits for several months. The plaintiff later returned to Martindale in November of 2003 in her position as senior analyst.
On May 26, 3005, the plaintiff filed a three-count complaint against Martindale and Bowers for violations of the LAD. After completion of discovery, Martindale moved for summary judgment, arguing that because Bowers was a co-worker, it could not be liable under the LAD for conduct of which Martindale had no knowledge. The court granted the motion, and an appeal followed. There were no published New Jersey decisions that addressed an employer's liability for co-worker harassment based upon the negligent failure to have in place effective and well-publicized sexual harassment policies.
The feasibility of a cause of action based upon the absence of an effective sexual harassment policy was first recognized in the frequently cited Lehmann v. Toys 'R' Us, 132 N.J. 587 (1993). In Lehmann it was found that employer liability could arise from supervisory sexual harassment when the employer negligently failed to have an effective sexual harassment policy in place based upon agency principles or direct liability. The court cited to Lehmann in pointing out:
Common sense suggests that sexual harassment at the workplace is foreseeable, even where anti-harassment policies exists. Although estimates that incidence of sexual harassment in the workplace vary, all estimates indicate that the problem is widespread...
In light of known prevalence of sexual harassment, a plaintiff may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training and/or monitoring mechanisms...
In light of these findings, the Appellate Division in Cerdeira determined that to limit Lehmann's holding to supervisory sexual harassment could potentially discourage employers from adopting sexual harassment policies that were well known and utilized by all employees. Therefore, an employer can have constructive knowledge of a hostile work environment created by a supervisor or a coworker by failing to have in place an effective and well-publicized sexual harassment policy that provides employees with a reasonable way to make complaints.
The Appellate Court's decision in Cerdeira continues to show the court's broad interpretation and application of the New Jersey LAD and the expansive nature of its coverage. The question then becomes, what can employers do to prevent liability for hostile work environment created by coworker employees when it has no knowledge? What's interesting about the Cerdeira decision is that it has not affected what employers should have already been doing to prevent sexual harassment in the work place. The Cerdeira Court suggests employers publicize sexual harassment policies that contain five elements already recommended in Lehmann in 1993. These five components are directed at surfacing sexual harassment complaints. The five factors are: (1) policies; (2) formal and informal complaint structures; (3) mandatory training for all supervisory employees that must be offered to all employees; (4) a monitoring system to determine if policies and complaint structures are trusted by the employees; and then, finally, (5) consistent application of the policies and procedures that is enforced from the top. Of course, the absence of an effective sexual harassment policy does not automatically constitute negligence, but it is strong evidence given the forseeability that sexual harassment may occur.
Employers should also be aware that the holding in the Lehmann case has been broadly applied to hostile work environments created by other forms of harassment, such as race and religion. Taylor v. Metzger, 152 N.J. 490, 498 (N.J. 1998) (a racial discrimination claim based on workplace harassment, plaintiff presented sufficient evidence from which a rational fact finder could have found that defendant engaged in discriminatory harassment by uttering a racial epithet that was sufficiently severe to have created a hostile work environment). Cutler v. Dorn, 196 N.J. 419 (2008) (under New Jersey Law Against Discrimination, threshold for proving religion-based, discriminatory hostile work environment was same as that applied to sexual- or race-based claims.) Consequently, it seems reasonable that the principals of Cerdeira will be applied to coworkers who create hostile work environments for other employees on the basis of other forms of discrimination like race, creed, color, national origin, ancestry, age, sex affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, or nationality.
Therefore, due to the ever-expanding nature of the New Jersey LAD, it is advisable that employers take the steps mentioned above aimed at preventing and successfully surfacing sexual harassment complaints and other forms of coworker created hostile work environments to avoid liability for its supervisory and non-supervisory employees' conduct.
*Victoria is an associate in our Roseland, New Jersey, office. She can be reached at (973) 618-4161 or vacabalar@Mdwcg.com.
