Anti-Harassment Policies Alone Will Not Protect Employers

In January 2011, an Appellate Division panel sent a warning to employers that an anti-harassment policy alone will not protect them from sexual harassment and discrimination claims. In Allen v. Adecco, Inc., (No. A-1708-09T2, 1/27/11), the court reversed the judgment entered in favor of the employer, holding that the employer’s anti-harassment policy did not meet the standards necessary to defeat a claim under the New Jersey Law Against Discrimination (“NJLAD”). 

Adecco, Inc., an employment staffing agency, placed Plaintiff at the University of Medicine and Dentistry of New Jersey (“UMDNJ”).  Plaintiff alleged that her supervisor made sexually graphic comments to her and touched her in a sexually inappropriate manner, and that the conduct continued even after Plaintiff objected to her supervisor several times.  Plaintiff complained to UMDNJ and to Adecco and then UMDNJ transferred Plaintiff to a different building.  UMDNJ later ended Plaintiff’s assignment due to issues involving Plaintiff’s attendance. 

Plaintiff subsequently sued Adecco and UMDNJ alleging sexual harassment and discrimination.  The trial court dismissed Plaintiff’s complaint on the Defendants’ motions for summary judgment and Plaintiff appealed.  The Appellate Division reversed stating that although UMDNJ had an anti-harassment policy, it did not distribute it to Plaintiff and the alleged harasser was unable to answer questions about it during his deposition.  The court also noted that UMDNJ contended that Plaintiff was not invited to participate in UMDNJ’s anti-harassment training because she was an employee of Adecco not UMDNJ. Also, although Plaintiff acknowledged receiving an anti-harassment policy from Adecco, she claimed that she was concerned she would be discharged if she complained excessively to Adecco.

Practice Pointer: This decision demonstrates that merely having a written anti-harassment policy is insufficient to protect employers from discrimination claims. Employers must implement formal and informal complaint procedures, distribute the policies and procedures, conduct anti-harassment training with all employees or at least all supervisors, and develop monitoring mechanisms to assess the effectiveness of its policies and procedures.  Employers also should ensure that their anti-harassment and anti-discrimination policies and procedures extend to contracts of leased employees, temps and other persons regularly working on site with the employer’s employees and that the actual employers of such individuals also have and enforce effective anti-harassment and anti-discrimination policies, procedures and practices.  Employers also should have all sub-contractors and staffing agencies sign agreements indemnifying the employer from any claims by the employees of these entities. 

For additional information on this topic, please contact Kathryn V. Hatfield at kvh@zuckerhatfield.com.