NEW JERSEY SUPREME COURT MAKES ANTI-HARASSMENT TRAINING MANDATORY FOR SUPERVISORS AND MANAGERS
Over the years, we have counseled our clients on the importance of training supervisors and managers about their employer’s anti-harassment policies. In fact, we have conducted such training for all levels of employees for many of them. On July 24, 2002, the New Jersey Supreme Court eliminated any lingering doubt about whether employers should consider such training. In Gaines v. Bellino, 2002 WL 1625544 (N.J.), the Court made clear that anti-harassment training is no longer a discretionary activity. It is now a mandatory legal requirement.
Plaintiff, Marcia Gaines, worked as a corrections officer at the Hudson County Correctional Facility on the midnight shift. One evening in 1990, her supervisor, Joseph Bellino, grabbed and kissed her against her will. The County had an anti-harassment policy in its employee handbook, which contained a formal procedure for filing complaints. Gaines reported the incident with Bellino to several co-workers, who encouraged her to "write up" Bellino; however, she never filed a formal complaint.
Over the next several years, Bellino repeatedly brought up the kissing incident with Gaines, several times while other supervisors were present. Those supervisors either laughed or indicated they did not wish to hear about the incident. In one instance, Gaines angrily responded to Bellino’s reference to the incident, and replied that even if he or other officers had raped Gaines, no one would believe her.
In 1995, while testifying in a deposition in an unrelated matter, Gaines stated that she felt she had been sexually harassed. The Hudson County Personnel Department then began an investigation of Gaines’ complaint. A disciplinary hearing ensued, and Bellino was suspended and soon thereafter retired. In 1998, Gaines sued Bellino and the Hudson County Correctional Facility for hostile work environment sexual harassment under the New Jersey Law Against Discrimination.
The lower courts dismissed Gaines’ claims against both Bellino and the County. They found that the County had an anti-harassment policy, had publicized it through posters and promulgated it through the employee handbook. They also noted that when the harassment was formally brought to the County’s attention, it acted appropriately and Bellino was disciplined. As such the County was insulated from vicarious liability for Bellino’s harassment of Gaines.
The Supreme Court, however, viewed the facts of the case in an entirely different light. While the Court endorsed "the principle that if an employer has exercised due care in acting to prevent a sexually discriminatory hostile work environment, vicarious liability should not attach," it noted that, in exercising due care, an employer must have more than "an anti-harassment policy in name only."
The Court identified five factors relevant to the determination as to whether an employer’s anti-harassment policy will act as an affirmative defense and absolve it from all liability. These factors include:
The existence of formal policies prohibiting harassment in the workplace.
The existence of complaint structures for employees’ use, both formal and informal in nature.
Anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization.
The existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures.
An unequivocal commitment from the highest levels of the employer that harassment will not be tolerated, and demonstration of that policy commitment by consistent practice.
Applying these factors to the facts of this case, the Court noted that all of the County’s supervisors and officers unequivocally stated that they had not received any sexual harassment training. In addition, despite the fact that Gaines had made several informal reports about Bellino to various supervisors, nothing was done to investigate or remedy the situation. Finally, when Gaines did complain, she was rebuffed and told that no one would believe her. The Court viewed this indifference as supporting the lack of confidence that employees exhibited towards the County’s anti-harassment policy. It considered it evidence of the County’s failure to meaningfully monitor its anti-harassment policy to assure its continued soundness and effectiveness. Based on this analysis, the Court held that the effectiveness of the County’s policy was clearly in dispute and as such, the case was remanded for a jury trial on all issues.
While the importance of supervisory and management anti-harassment training has been stressed in many legal decisions, the message given by the Court in Gaines is loud and clear. An employer has an obligation to educate its workforce about its anti-harassment policies. The law now mandates employers to provide such training and the failure to do so will stand as evidence that the employer was negligent. Such an employer will lose the affirmative defense that would provide "a form of safe haven from an employee’s harassing conduct of others."
The Gaines decision establishes a new standard for all employers in New Jersey, both large and small. What was once perhaps considered prudent practice is now the law. The costs of providing training pale in comparison to the risk involved in neglecting this responsibility. We urge all of our clients to consider the ramifications of this decision in their workplace and to contact us regarding any questions concerning the kind of training most appropriate for them.