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How Businesses Can Protect Themselves From Sexual Harassment Claims

800px-Courtroom.jpgA recent New Jersey Appeals Court decision involved a case involving sexual harassment complaints in a large company. A company that has specific, formal, effective policies for reporting/addressing complaints of sexual or other harassment - and acts swiftly upon these - may be shielded from liability.

C.E. filed a sexual harassment complaint against her former employer, a major gas station/food store chain. She was hired in November 1999 and was given the company's Team Member Handbook, that outlined specific formal procedures to deal with sexual or other harassment complaints. Under those procedures, reports must be made to either the employee's immediate supervisor, or a companywide leader. From there, the handbook outlined a comprehensive process, where the company investigates the accusations. C.E. signed the policy, and also watched training videos on sexual harassment.

In 2006, she became a "Store Leader" for the company, which expanded her role and responsibilities to that of a head manager. In that role, she distributed the very same policies to new employees. In March 2010, C.E.'s store held a weight loss competition. Sometime in May, a loss prevention employee visited the store to investigate a theft. When C.E. weighed herself and learned she had lost eighteen pounds, this individual supposedly said "What is your husband going to do when you get all small and sexy down there?" to which she replied "You're a slob, you're a slob, you really need to stop." On his way out, he also told another female employee "Move your big butt out of my way, girl."

C.E. claimed that she called her supervisor to report the behavior and requested that the supervisor "talk to him because his mouth is terrible." The supervisor denied receiving such a report. Also, C.E. did not claim that the comments were made to her again until November of that year. In support of her claim, another woman testified to numerous instances of male employee's vulgar conduct, in addition to other unrelated sexual harassment instances. But she refused to provide any supporting specific information.

In November 2010, the company held an awards dinner attended by both C.E. and the male loss prevention employee. There, he supposedly made numerous sexual references to her, based on her leather jacket, including "Where's your whips and chains, girl? You know you like it." Other comments included "Where is your husband? I want to ask him how big it is down there.' pointing to plaintiff's crotch." The man followed this up by standing in a nearby doorway and saying "what are you going to do about it?"

C.E. later filled out an anonymous survey about the awards dinner and gave it mostly positive reviews. But she also described the vulgar sexual/threatening comments made by the male employee. The company's Director Of Human Resources reviewed the surveys, and also gave a copy of C.E.'s survey to a senior vice president, who contacted the man's supervisor and ordered an investigation of the incident. That same day, the male employee confronted C.E. and asked why she did not complain directly to him, and begged for forgiveness. In a series of phone calls by C.E. that culminated in a face-to-face interview with the company's General Counsel, it was decided that the male employee was never to have direct contact with C.E. again.

Initially, a senior company official wanted to fire the man. But upon realizing that a formal complaint was never lodged against him in nearly 25 years of continued employment, it was decided a formal "constructive advice" document would be given to him. This conditioned his continued employment on refraining from future inappropriate comments, declining assignments in C.E.'s store district, refraining from retribution against C.E., and attending a harassment program. The employee signed this document on which he wrote it "will never happen again."

The following year both individuals attended the awards dinner event. C.E. did not have a problem with this because the company had advised her that the harasser would not to contact her in any way. This time, he did not. In 2012, C.E. went on a permanent disability leave. She spoke to the company's CEO and requested that the former harasser be demoted or moved so she wouldn't have to see him again. She also said that she did not apply for promotions because of his conduct.

A month later, she filed a lawsuit against the company claiming hostile work environment and retaliation. The trial court dismissed the case because the company had "effective procedures for reporting and responding to complaints of harassment" and that the company had done so here. It was also decided that there was no evidence to show that C.E. suffered any negative employment consequences.

The Appeals Court first repeated the well-settled law under New Jersey's Law Against Discrimination (LAD) that an employer may be liable for an employee's harassing conduct - if it fails to take sufficient preventative measures. These include a thorough and formal anti-harassment policy and procedure. Moreover, the person suing must show that the employer failed to take reasonable care to address the harassment claim made by an employee. Courts look to what company policies/programs/departments are available to protect employees from harassment.

Generally, "an employer's response to harassment or discrimination is considered 'effective' if it is deemed to be 'reasonably calculated to end the harassment.'" In this case, the testimony of the other woman who claimed that there were numerous - unspecific - instances of the male employee's vulgar conduct was largely hearsay. The higher court decided that the record showed that there was not another instance of harassment by the male employee after the formal written complaint, which was swiftly addressed. The company acted properly and the lower court's decision was upheld. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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