201-470-4181Employees can possibly negate an employers defense to vicarious liability for a supervisors sexual harassment.
By N.A. Pagliara, Esquire of Pagliara Law Group, P.A. posted in Employment Law Blog on September 10, 2022.
It is far too common that when a sexual harassment claim is filed against an employer that they think they are not vicariously liable because they have an affirmative defense. In 1993, the New Jersey Supreme Court held regarding the case ‘Lehmann v. Toys ‘R’ Us’ a corporation can held responsible if the sexual harasser was acting in their scope of his or her employment or if the employer was negligent for permitting the existence of a hostile work environment. After the prior decision, questions were still in question concerning how victims of sexual harassment could prove that their employer was negligent and therefore liable for the sexual harassing conduct of one of its workers. In a 2002 case Maria Gaines v. Joseph Bellino, the New Jersey Supreme Court supplied additional details concerning an employer’s liability for workplace sexual harassment and announced a framework for courts to see whether an employer has an valid and binding anti-harassment policy.
In Gaines v. Bellino, the plaintiff Maria Gaines was an employee of Hudson County Correctional Facility when her supervisor Captain Bellino began to sexually harass her. In 1990, Mr. Bellino forcibly kissed Ms. Gaines against her will. Ms. Gaines objected to the assault, and immediately reported it to several coworkers and some other higher level officials of the facility. She was told to report the behavior, but expressed fear of retaliation as well as of Bellino hurting her. This fear was shared by multiple coworkers, and Gaines was further advised that the facility’s supervisors would most likely not believe her reports of the harassment. Because of this, Gaines chose not to submit a formal report regarding the behavior. Over the next few years, Gaines was subject to more and more harassing incidents. On one time, Bellino mentioned the initial assault in front of a superior officer, adding that he could even rape Gaines and no one would believe her. In early 1995, Ms. Gaines reported the conduct to the warden of the facility. No formal investigation was initiated until 1996, and no action was taken until March 1997, when Bellino was suspended for 30 days.
Ms. Gaines filed a legal complaint against Bellino and the Hudson County Correctional Facility regarding the harassment in 1998. The trial court granted summary judgment in favor of the defendants noting that the Hudson County Correctional facility maintained an anti-harassment policy and mechanisms for reporting harassment, proven by posters that had been exhibited in the facility as well as a section of the employee handbook that dictated the reporting process. Ms. Gaines appealed this decision, as she argued that the anti-harassment policies were ineffective and not implemented correctly. The question that the New Jersey Supreme Court was tasked with with answering was whether the Hudson County Correctional Facility’s anti-harassment policy in place was enough to protect an employer from being held accountable for sexual harassment?
To address this controversy, the Supreme Court held that the only presence of anti-harassment policies is not sufficient to clear an employer of liability for sexual harassment damages. Instead, these policies and the reporting mechanisms they outline must be demonstrably effective; i.e. they must provide “meaningful assistance” to victims of sexual harassment. The New Jersey Supreme Court outlined five factors that courts can use to determine the effectiveness of an employer’s anti-harassment policy, which are as follows:
(1) formal policies prohibiting harassment in the workplace;
(2) both informal and formal complaint structures for employees’ use;
(3) anti-harassment training, which must be mandatory for supervisors and managers and available to all employees;
(4) the existence of monitoring mechanisms to check the effectiveness of the policies and complaint structures; and
(5) an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.
In Ms. Gaines’ case, the inadequate response of those to whom she had reported the conduct demonstrated that the facility maintained an atmosphere that condoned harassing behavior and dismissed allegations of wrongdoing. This type of atmosphere would be indicative of an ineffective anti-harassment policy. For this reason, the New Jersey Supreme Court held that Ms. Gaines’ sexual harassment lawsuit should not have been granted summary dismissal. Instead, Ms. Gaines was entitled to a jury’s evaluation of the facts.
The New Jersey Supreme Court’s Gaines decision is particularly relevant for employers who attempt to use the fact that they maintain anti-harassment policies as a defense against sexual harassment complaints. This case determined that it is not enough for an employer to have a paper anti-harassment policies to be in place; instead, they must be sufficiently effective and provide substantive assistance to employees from falling victim of sexual harassment.
While Gaines v. Bellino clarified the standards for assessing whether an employer can be held legally responsible for workplace sexual harassment, this determination will remain a fact sensitive inquiry. If you or a family member are the victim of sexual harassment, it is crucial that you seek advice and counsel from an experienced New Jersey sexual harassment lawyer who can consider the specific facts and circumstances of the workplace situation. Sometimes, if they had the policy and did not conduct annual anti-sexual harassment training of there supervisors that may negate the employers defense.
If you have been sexually assaulted or harassed at work by your supervisor you may be entitled to compensation and now the employer cannot force you into biased arbitration. If so contact Pagliara Law Group at 201-470-4181.
AUTHOR: Nicholas A. Pagliara, Esq. Founder, Chairman of the Board and Managing Attorney of Pagliara Law Group, PA.
Contact Us: Our attorneys represent employees as victims against their employer in all discrimination and sexual harassment and assault cases. Call us at (201) 470-4181 or fill out the contact form on this page. We can help.
Tags and Topics: Me too, Arbitration, Motion to Compel, Hostile Work Environment, Discrimination, Sexual Harassment, Sexual Assault, Employment law, New Law See our Labor and Employment Law practice group, Sexual Harassment.
