Employers in New Jersey are well aware of the importance of instituting an effective anti-harassment policy and providing anti-harassment training to its employees. In Jones v. Dr. Pepper Snapple Group, et al.,[1] however, the Appellate Division made clear that an employer must provide its policy and training to all employees, including temporary employees, before the alleged harassment occurs. Otherwise, the employer may not assert a viable defense to a hostile work environment claim.
In Jones, the plaintiff was employed by Motts LLP (Motts),[2] initially as a temporary employee and later as a permanent employee. Although Motts had in place an anti-harassment policy, the plaintiff, while employed on a temporary basis, never received a copy of the anti-harassment policy nor participated in a anti-harassment training course.
During her term as a temporary employee, the plaintiff allegedly suffered sexual harassment by several Motts employees, two of which were arguably her supervisors. The plaintiff, in fear of retaliation, never complained to Motts regarding the alleged harassment.
Thereafter, the plaintiff was terminated; however, she was later rehired as a temporary employee and approximately one month later, became a permanent employee. At that juncture, the plaintiff was provided with a copy of the anti-harassment policy. A month later, the plaintiff resigned.
Thereafter, the plaintiff filed a complaint asserting, in part, a claim for sexual harassment through a hostile work environment. On a motion for summery judgment, Motts argued that it was shielded from liability because, even if the plaintiff had suffered a hostile work environment, Motts had in place an effective anti-harassment policy. Based on that defense, the trial court granted Motts' motion. The plaintiff appealed.
The Appellate Division reversed in part, finding that, because the plaintiff neither received the anti-harassment policy nor any anti-harassment training before she was harassed, Motts could not absolve itself of liability. The Court explained that, under either theory of liability – direct negligence or vicarious liability – the employer must establish that the employee was aware of the anti-harassment policy. Based on the facts presented by the plaintiff, prior to being harassed, "she was not advised of the remedies [Motts] put in place for its employees' protection in the event they were harassed, and she never received any training at all."[3] Thus, a question of fact remained as to whether Motts was negligent or vicariously liable for the harassment and, therefore, summary judgment was improperly granted on those grounds.
The Bottom Line. New Jersey employers have long been aware that instituting an effective anti-harassment policy and providing anti-harassment training to its employees may absolve it of liability for alleged workplace harassment. As is clear from Jones, all employees, including temporary employees, must have been previously aware of the anti-harassment policy and should have received anti-harassment training for the defense to be effective.
For more information, please contact Jed L. Marcus or Jenny R. Caruso.