In a recent case, Allen v. Adecco, Inc., (App. Div. 2011), the New Jersey Appellate Division reemphasized the standards for an effective anti-harassment policies. A crucial element is manager and employee training.
Jessica Allen was a temporary employee at the University of Medicine and Dentistry of New Jersey (“UMDNJ”). She alleged that her supervisor was sexually harassing her through graphic, vulgar language and unwanted touching on her back, thighs, and buttocks. Within hours of receiving Ms. Allen’s complaint, UMDNJ transferred the supervisor to another position in the same building and began an investigation. But the supervisor’s harassment continued. Ms. Allen complained again, and UMDNJ then transferred her to another building. When Ms. Allen was terminated a few months later for attendance abuse, she sued for sexual harassment, sex discrimination and retaliation.
The trial court granted UMDNJ’s motion for summary judgment, reasoning that there should be no liability because UMDNJ had an anti-harassment policy, it promptly addressed Ms. Allen’s complaint by transferring the supervisor, and that it terminated Ms. Allen for poor performance. But the Appellate Division reversed, and set the case back for a jury trial, finding question a about whether UMDNJ had the kind of active and effective anti-harassment policy needed to limit or escape liability. That Ms. Allen was a temp, hired through Adecco, did not relive UMDNJ of responsibility or absolve it of liability.
Even though UMDNJ promptly investigated Ms. Allen’s harassment claim and took prompt remedial action, the court ruled that UMDNJ might still be held liable due to the employer’s alleged insufficient publication and training with regard to its anti-harassment policies. Ms. Allen testified that she had never received anti-harassment training at UMDNJ, and, although the supervisor had been to training, he was unable to answer many of the questions he was asked about UMDNJ policy and complaint procedures.
The court stressed that, under NJ law, an effective anti-harassment policy contains: (1) a formal prohibition of harassment; (2) training for workers, supervisors and managers on recognizing and eradicating harassment; (3) mechanisms for assessing the policy and the complaint procedure; (4) unequivocal commitment to a harassment-free workplace as demonstrated by consistent practice; (5) periodic publication of the policy; (6) remedial measures reasonably calculated to end harassment; and (7) an effective, practical complaint and grievance process.
If you haven’t updated your anti-harassment policy lately, now is the perfect time. While the Allen case involves sexual harassment, don’t limit your policy, but make sure that it covers all of the protected characteristics under federal and NJ law. And, once your policies are up to date, the next steps are to hand them out, and to train not just your managers and supervisors, but all employees.
