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Kates Nussman Rapone Ellis & Farhi, LLP

A Loss - and a Warning - to New Jersey Employers

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A recent New Jersey Appellate Court ruling decided that simply implementing a sexual harassment policy is not enough to defend an employer against a hostile work environment claim.
Anita Jones was hired as a temporary worker at a Dr. Pepper Snapple Group manufacturing plant. While still a temporary worker, she claimed that coworkers inappropriately touched her and made lewd comments. She said that when she complained to a manager, her told her that temporary employees are easily replaced. Eventually, Ms. Jones was made a permanent employee and was given an employee handbook that laid out the process for reporting harassment.
When Ms. Jones resigned shortly after that, she reported the harassment incidents to a human resources manager. She claimed that she did not report the incidents when they originally took place because she was afraid she would not be offered a permanent position. Although human resources offered her a new position, she refused. Then, she sued the employer. The company said that it could not be held liable for its non-supervisory employee's actions because it had an effective sexual harassment policy and complaint procedure in place.
A February 2015 New Jersey Supreme Court decision, called Aguas v. State of New Jersey, held that a critical factor in determining negligence is whether the employer had implemented and enforced an effective anti-harassment policy. But in Ms. Jones' case, the Appellate Court said that although Dr. Pepper Snapple Group had implemented formal and informal complaint processes, they are only effective if employees are aware of them. And although the company claimed it was not liable because the harassing employees were not Jones' supervisors, according to the Aguas case, a supervisor is considered anyone who is in charge of another person's daily work activities. That applied to the harassers.
What does this mean for employers? They've always had a responsibility to their employees to provide a safe work environment. This new decision has expanded that responsibility from not only implementing anti-harassment policies and complaint mechanisms but also to informing employees and temporary employees of them. This case turned on the fact that Jones was not given the employee handbook that outlined such policies until she was made a regular employee. If she was informed of her options and protections from the beginning of her temporary employment status, the employer could have better defended the case. A company, to give itself the strongest possible defense against a hostile work environment claim, should not only implement a strong anti-harassment policy, but inform all employees of the policy. With the collaboration of Kieu-Nhi Le, Rutgers School of Law Newark candidate for a JD degree in May 2016. She is the Managing Business Editor of the Rutgers Computer and Technology Law Journal 

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