Labor & Employment Law

Is it negligence on the part of an employer if it fails to have effective and well-publicized sexual harassment policies in place?

Is it negligence on the part of an employer if it fails to have effective and well-publicized sexual harassment policies in place?

Robin Cerdeira v Martindale-Hubbell, Appellate Division [New Jersey], Docket #A-5855-06T1, Decided September 18, 2008

Often in harassment cases the employee did not take advantage of a grievance procedure but claims that the harassment was so pervasive that the employer knew or should have known about it. Such "constructive notice" makes the employer legally responsible for the harasser's behavior.

In Fraley v American Cast Iron Pipe, CA11, 74 FEP Cases 217, a federal appeals court declared that if an employer vigorously enforces its sexual harassment policy and actively encourages employees to come forward, it can escape liability. In the words of the Circuit Court, "We hold that an employer is insulated from liability under Title VII for a hostile environment sexual harassment claim premised on constructive knowledge of the harassment when the employer has adopted an anti-discrimination policy that is comprehensive, well-known to employees, vigorously enforced, and provides alternate avenues of redress.?

This, said the court, does not conflict with the landmark U.S. Supreme case of Meritor Saving Bank v. Vinson, 477 US 57, in which the High Court ruled that "the mere existence" of a grievance procedure and a policy against discrimination does not insulate an employer from liability, even if the employee fails to take advantage of the grievance procedure. "Unlike Meritor, however, the instant action involves a set of procedures explicitly designed to 'encourage victims of harassment to come forward,'"

In contrast, the Cerdeira case involved a situation where the plaintiff charged that her employer was liable for the sexual harassment she alleged she had suffered because her employer, Martindale-Hubbell, ?failed to have in place an effective sexual harassment policy.?

New Jersey?s Appellate Division agreed, holding that ?In light of the 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 . . ..?

Robin Cerdeira sued Martindale, alleging that she became the subject of harassing conduct directed towards her by co-worker, Melvin Bowers, who worked in a separate department from plaintiff and who was not her supervisor nor a supervisor or manager within his own department. Cerdeira complained that Bowers had subjected her to ?harassing conduct, which included sending her sexually explicit pictures of "[n]aked women, people having sex, catalogs of Frederick's of Hollywood, Victoria's Secret, [and] people having oral sex ?? and other unwelcome acts.

When Martindale learned of this, it immediately suspended Bowers and two days later terminated his employment. Martindale told Cerdeira ?to take as much time off as she needed,? which she did, remaining on paid leave with all benefits for several months. She returned the following November.

Noting that ?There are no published New Jersey decisions that have addressed employer liability for co-worker harassment based upon the negligent failure to have in place effective and well-publicized sexual harassment policies,? the court said that this theory has been recognized in federal decisions.

Reversing the lower court?s grant of summary judgment dismissing Cerdeira?s complaint, the Appellate Court remand the case to the trial court, indicating that it makes no determination that the proofs before the lower court were sufficient to survive summary judgment on a negligence-based theory but, rather ?This issue, in the first instance, should be addressed? by the trial court, citing Lehmann v Toys R Us, 132 N.J. 587, in which the court held that ?the absence of an effective sexual harassment policy does not automatically constitute negligence, nor does the existence of such a policy demonstrate the absence of negligence.

The full text of the decision is posted on the Internet at:

http://hr.cch.com/cases/Cerdeira.pdf

The Maryland Commission on Human Relations has published a ?fact sheet? - Preventing Sexual Harassment--A Fact Sheet for Employees," that addresses such issues as the Definition of Sexual Harassment and Employee Responsibilities for Preventing Sexual Harassment.

The text of the fact sheet is posted on the Internet at:

http://www.dotcr.ost.dot.gov/Documents/complaint/Preventing_Sexual_Harassment.htm

Full post as published by New York Public Personnel Law on October 07, 2008 (boomark / email).