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New Jersey Employer's Response to Sexual Harassment Complaint Provides Defense Against Lawsuit

  • September 23, 2003

During the past few years, there has been a steady stream of lawsuits finding New Jersey employers liable for sexual harassment based on lack of an effective anti-harassment policy or failure to conduct a prompt and thorough investigation of alleged misconduct. Some courts have been willing to entertain lawsuits by individuals for wrongful termination based on a less than thorough investigation into allegedly harassing conduct. Despite this trend, some courts have been willing to recognize employers' good faith efforts to prevent and remedy misconduct.

One recent case where a New Jersey employer effectively dealt with sexual harassment and avoided liability is Cottell v. Roche Diagnostic System, Inc., (App. Div. March 7, 2003). The employee was an assistant for the defendant from whom she had borrowed $1,000. On a number of occasions over the next two years, she claimed the defendant engaged in inappropriate conversations of a sexual nature during which he informed her he was attracted to her and suggested "other" ways she could repay the loan. Shortly following the last conversation, where he suggested she strip and receive a full-body massage, or repay the loan, she reported the conduct to the company's human resources department.

Within three days, a senior director at the company met with the employee and told her she would no longer have to report to the alleged harasser. Several days later, a team of supervisory personnel confronted the alleged harasser and, after he admitted the conduct, suspended him for two weeks without pay. The company also disqualified him for any consideration for merit increases or bonuses for the following year, reduced the scope of his managerial responsibilities, required him to attend additional training regarding the company's workplace harassment policy, and required him to seek counseling at his own expense. The company also informed him that any future instances of inappropriate conduct or retaliation would result in immediate termination.

Nonetheless, the employee filed a lawsuit alleging she was sexually harassed. In dismissing the suit, the court found that although the supervisor's comments were clearly contrary to the company's sexual harassment policy, the remedial action taken by the company within nine days of the plaintiff's internal complaint was sufficient to insulate the company from liability. Importantly, the court noted that the employer was not aware of the supervisor's improper conduct prior to the employee reporting it.

This decision is a refreshing reminder for employers that they may avoid liability for sexual harassment - even when inappropriate conduct does occur in the workplace - if they react promptly and take effective steps to remedy the situation. These steps include having the following measures in place: (1) formal policies prohibiting harassment in the workplace; (2) complaint structures for employees' use, both formal and informal in nature; (3) anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization; (4) the existence of effective monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) an unequivocal commitment from the highest levels that harassment will not be tolerated. By consistently adhering to the above guidelines and responding promptly and effectively to claims of harassment, employers will be able to dramatically reduce their exposure to liability for allegations of sexual harassment.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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