Employment attorneys often warn that employers of all sizes risk liability if they do not provide their staff with a written anti-harassment policy setting out their expectations regarding appropriate workplace conduct. Just drafting the policy is not enough. As a recent New Jersey Appellate Division case highlights, the company’s anti-harassment policy must contain all the necessary components of an effective policy, must be distributed to all workers- including temporary workers. In addition, the company must take steps to ensure that employees understand their rights and obligations.

In Allen v. Adecco, Inc., A-1708-09T2 (Jan. 27, 2011), plaintiff Jessica Allen sued the University of Medicine and Dentistry of New Jersey (“UMDNJ”) for harassment and retaliation in violation of the New Jersey Law Against Discrimination. The trial court ruled in favor of the defendant on summary judgment on the grounds that UMDNJ had an anti-harassment policy in place and addressed plaintiff’s complaint by transferring the alleged harasser. The Appellate Division disagreed, however, finding that genuine factual disputes existed regarding the sufficiency of the anti-harassment policy and whether plaintiff knew about it.

Allen began working as a temporary employee for UMDNJ in May 2007. She claimed that one of her supervisors, Jacques Coles, harassed her by making sexual comments and inappropriately touching her. Allen also claimed that Coles threatened that she would lose her job if she reported him and that she would not obtain a permanent position with UMDNJ unless she had sexual relations with him. He also allegedly told her that, if she reported him, nobody would believe her because he had worked for UMDNJ for a long time and knew a lot of people there.

Within hours after Allen reported Coles’ behavior, UMDNJ transferred Coles to another position in the same building. A few days later, UMDNJ transferred Allen to a different assignment in a building where she was less likely to run into Coles. In the following months, Allen had a series of short-lived assignments during which UMDNJ contended that she was not reliable in terms of attendance and punctuality. Only four months later,
in September 2007, UMNDNJ terminated its relationship with Allen.

In overturning the trial court’s ruling, the Appellate Division questioned the sufficiency of UMDNJ’s harassment policy and training procedures. The Court noted that it was unclear whether UMDNJ’s policy was given or made known to plaintiff. Plaintiff did not receive any harassment training and, while Coles was regularly trained, he did not appear to be familiar with the content of UMDNJ’s harassment policy. Moreover, there were previous rumors about Coles’ inappropriate behavior circulating around his department that had gone without notice or consequence. According to the Court, “[o]n those facts, jurors could well conclude that UMDNJ’s commitment to training and monitoring and to eradicating harassment was insufficient to allow it to avail itself of the case law’s safe haven.”

Lessons Learned

The Adecco court provided guidance on the components of an effective anti-harassment program, including:

• Formal statement prohibiting harassment
• Formal and informal complaint structures
• Anti-harassment training
• Mechanisms for assessing the policies and complaint procedures
• Unequivocal commitment to intolerance of harassment demonstrated by consistent practice

Employers should work with counsel to ensure that their harassment policies contain all of these necessary components. Once the policy is finalized, the company must distribute it to employees in all job categories, including temporary workers. The company should also provide comprehensive anti-harassment training for all workers so they understand the company’s expectations regarding appropriate workplace behavior and the avenues to complain about unwanted conduct.

Employers also need to institute a policy ensuring the prompt and thorough investigation of all complaints of harassment and discrimination and train supervisors so that they know what to do if an employee makes a complaint under the policy. It is imperative that the company follow up with disciplinary action where appropriate and periodically review its policies and procedures to make sure that they are being consistently followed.

The Adecco court made it clear that an anti-harassment policy must exist in more than name only. While the above procedures may seem lengthy, it is better to be safe than sorry.