In Wallace and Stewart v. Mercer County Youth Detention Center, the Appellate Division gave a thorough review and analysis of employer obligations regarding investigation of sexual harassment and sexual harassment training and policies. The decision is instructive and helpful.

Summary judgment had been granted to the employer regarding harassment complaints by Tina Stewart and Moneck Wallace alleging persistent sexual harassment by a fellow employee under the New Jersey Law Against Discrimination (NJLAD). They complained that a co-worker, Jerel Livingston, committed acts of sexual harassment that although promptly reported were not properly addressed by the Detention Center. They also argued that the supervisors and employees at the Center were uninformed about how to find the County’s sexual harassment policy and that inadequate sexual harassment training coupled with unclear monitoring and investigative procedures rendered it ineffective.

The facts on the record established sexual harassment by Livingston including repeated contact, comments, and conduct regarding plaintiffs. There were comments about Stewart’s buttocks, kisses, and efforts at touching. Both complainants filed an incident report with their supervisor, Gloria Hodges, who then passed the report to the Youth Detention Center assistant superintendent. Hodges admitted she gave copies of the report to Livingston so he could respond. Apparently, his conduct continued. The incident reports were sent to the County personnel department on April 24, 2006. However, the administration did not make contact until May 19, 2006 and Aixa Aklan was assigned to investigate. Ms. Aklan’s only sexual harassment training consisted of a state-sponsored class that she had attended in 1999 and a class on human resources law she took while in college.

After interviewing the plaintiffs, Ms. Aklan prepared an investigation report that concluded there was not enough information to sustain the charges. She gave five reasons on each plaintiff as follows:

With regard to Stewart:

1. Did not report incident immediately and only when asked by the Supervisor on 4/13/06.

2. Exchange of cell phone was omitted in Stewart interview.

3. Information regarding friendship with Wallace was withheld.

4. Expressed that she did not want him terminated.

5. No witnesses were present at time of alleged wrongdoing.

With regard to Wallace:

1. Did not file a report immediately after the fact.

2. Had discussion with his ex-wife regarding previous incidents involving Livingston.

3. Gave account of other employee’s involvement, when only two came forth.

4. Friendship with Stewart.

5. No witnesses were present at the time of the alleged incident.

The trial judge found a prima facie case of sexual harassment was established but no liability since Livingston was not a supervisor.

The Appellate Division reversed on a variety of grounds. For example, a negligence standard should have been applied because the County did not “have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms.” Following the Supreme Court’s direction in Lehmann v. Toys ‘R’ Us, the Appellate Division quoted as follows:

Employers that effectively and sincerely put five elements into place are successful at surfacing sexual harassment complaints early, before they escalate. The five elements are: policies, complaint structures, and that includes both formal and informal structures; training, which has to be mandatory for supervisors and managers and needs to offered for all members of the organization; some effective sensing or monitoring mechanisms, to find out if the policies and complaint structures are trusted; and then, finally, an unequivocal commitment from the top that is not just in words but backed up by consistent practice.

Similarly, given the foreseeability that sexual harassment may occur, the absence of effective preventative mechanisms will present strong evidence of an employer’s negligence.

The Appellate court found it to be error for the trial judge to grant summary judgment merely based upon Livingston’s status as a co-worker noting that the court should have focused on the “preventative mechanisms” put in place by the employer rather than status alone. The Court said that Aklan found the plaintiffs’ claims of sexual harassment unsubstantiated even though the claims fit neatly into the policy’s definition of sexual harassment as follows:

Unwanted physical contact such as intentional touching, grabbing, pinching, brushing against another’s body or impeding or blocking movement.

Verbal or written sexually suggestive or obscene comments, jokes or propositions including letters, notes, e-mail, invitations, gestures or inappropriate comments about a person’s clothing.

Visual contact, such as leering or staring at another’s body, gesturing, displaying sexually suggestive objects, cartoons, posters, magazines or pictures of scantily-clad individuals.

Explicit or implicit suggestions of sex by a supervisor or manager in return for a favorable employment action such as hiring, compensation, promotion, or retention.

Suggesting or implying that failure to accept or request for a date or sex would result in an adverse employment consequence with respect to any employment practice such as performance evaluations or promotional opportunity.

Continuing to engage in certain behaviors of a sexual nature after an objection has been raised by the target of such inappropriate behavior.

The Court also noted, in rejecting Aklan’s analysis, that the fact that harassment occurred when no one else was present is not unusual. The Appellate Division said that given Aklan’s “minimal training in the area of sexual harassment” her conclusions were “not unexpected.”

The Supreme Court has held that the following components of an effective anti-harassment policy are as follows: “a formal prohibition of harassment; formal and informal complaint structures; anti-harassment training; sensing and monitoring mechanisms for assessing the policies and complaint procedures; and unequivocal commitment to intolerance of harassment demonstrated by consistent practice.”

The Appellate court was concerned about the time delay after submission of reports and the investigation which appeared to be contrary to “immediate.” In general, the appellate court found that the paucity of effort and resources placed by the County into training, as well as the necessary updating of information and frequency, rendered the issue of “effective” to be a jury question.

In other words, the adequacy of sexual harassment training provided to supervisors and employees, as well as the effectiveness of the policy and associated investigatory procedures, is a fact question to be considered. The Court also noted the lack of any discernable criteria to be used when evaluating whether or not a sexual harassment claim is substantiated as well as monitoring procedures used to evaluate the sexual harassment policy’s effectiveness.

Tips: The message from Stewart is clear: employers are again placed on notice that monitoring and implementation of sexual harassment policies is critical; effective training for employees and supervisors is necessary; and regular, thorough and comprehensive investigations must be made in a timely manner each time there is a complaint of sexual harassment. Failure to do so will subject the entire process to review and likely reversal.