What Good are Anti-Harassment Policies and Complaint Procedures if Employees Don't Know About Them?
By: Kelly Ann Bird

The New Jersey Appellate Division recently addressed this question in the context of an employer's assertion of an affirmative defense to a harassment claim. As you know, employers who maintain and enforce an effective anti-harassment policy not only help employees understand the parameters of acceptable workplace conduct and the repercussions of inappropriate conduct, but also may have an affirmative defense to a hostile work environment harassment claim, as the New Jersey Supreme Court recognized in Aguas v. State of New Jersey, 220 N.J. 494 (2015). However, the New Jersey Appellate Division, in an August 3, 2015 unpublished decision, has warned that the affirmative defense will not be applied unless the complainant employee is aware of the complaint mechanism.

In Jones v. Dr. Pepper Snapple Group, 2015 N.J. Super. Unpub. LEXIS 1848 (August 3, 2015), the plaintiff alleged that she was subjected to sexually harassing conduct, including sexual touching and lewd comments, during the period from March 2011 to October 2011, when she worked as a temporary employee in a Mott's LLP (the proper defendant) manufacturing facility. She complained about some of the conduct to a supervisor, who said that he would "take care of it," but who also thereafter engaged in inappropriate physical contact. The plaintiff reapplied for temporary work, was rehired in January 2012, and then hired as a permanent employee in late February 2012, at which time she first received a copy of the company's employee handbook, which contained a procedure for reporting sexual harassment complaints. The plaintiff was never at any time trained on the company's anti-harassment policy. Within a month of being hired as a regular employee, the plaintiff resigned. She filed suit alleging hostile work environment sexual harassment, quid pro quo sexual harassment, and disparate treatment. The trial court granted summary judgment in favor of Mott's on all claims.

On appeal, the Appellate Division affirmed summary judgment except as to the hostile work environment sexual harassment claim. Citing Aguas, the appellate court reiterated the requirement that, in order to benefit from the affirmative defense in a hostile work environment sexual harassment claim, the "employer must prove by a preponderance of the evidence that: it did not take any tangible employment action against the plaintiff; it exercised reasonable care to prevent and to promptly correct the sexually harassing behavior; and the plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm." The application of this test to the Jones matter hinged on the reasonable care taken by the employer. The court's holding reflected its conclusion that the existence of a complaint structure alone did not constitute reasonable care: "Although defendant may have had formal and informal complaint structures in place, in order for these structures to have been effective, its employees had to be aware of them." Given the plaintiff's asserted lack of knowledge, the court found "a question of fact whether the defendant was negligent in its efforts to eradicate sexual harassment from the workplace by failing to alert plaintiff as a temporary employee of the steps she could take if subjected to harassment."

Certainly, this decision has now created a new level of responsibility for employers. Training all employees to ensure they understand your company's anti-harassment policy and know what they should report and to whom is now more than just a "best practice." It is an imperative.

In addition, although the court did not directly address the issue, the decision raises questions as to the type and extent of policies and training that employers must provide to their temporary employees. As mentioned above, Mott's did not provide the plaintiff a handbook when she worked as a temporary employee, only later, when she became a permanent employee. But Jones' claims arose when she was a temporary employee, and it was this period to which the court looked, without distinguishing Jones' status, in considering whether the company had exercised reasonable care. Although it was unclear from the decision whether Jones was hired through a third-party agency or directly by Mott's to fill a temporary need – for example during a peak production period – it is clear that the Court had an expectation that, at a minimum, she would know about the Mott's policy and complaint reporting process. This decision thus seems to impose an obligation that many employers have not assumed vis-a-vis temporary hires.

Gibbons attorneys prepare policy updates and conduct company-wide training regularly and can efficiently help you protect your business. If you would like more information on the Gibbons employment counseling and training practice, feel free to contact any attorney in the firm's Employment & Labor Law Department.