Skip to Content

Employers: Anti-Discrimination Policies Can Help You Defend Against Vicarious Liability Claims

Feb 27, 2017 | Written by: Tracy B. Bussel, Esq. |

New Jersey Courts have recently acknowledged that an employer is entitled to an affirmative defense to a hostile work environment claim based on the employer having exercised reasonable care to prevent and correct any harassing behavior. To obtain the protection of this defense, an employer must prove that it exercised reasonable care to prevent and to promptly address and correct the alleged behavior, and that the plaintiff employee failed to avail him or herself of preventive or corrective opportunities available, or to otherwise avoid harm. Courts look disfavorably toward claims where there is a policy prohibiting discrimination in the workplace, with instructions on how to report harassment, yet the plaintiff fails to report any such incidents to his/her supervisors, and instead pursues legal action. 

In January 2017, by affirming dismissal of claims as to an employer, the Appellate Division recognized the importance of anti-harassment policies in cases brought under the New Jersey Law Against Discrimination (NJLAD). In Endries v. Quick Check Food Stores, Inc. (A-0091-15T1), the plaintiff alleged several incidents whereby an employee sexually harassed her in violation of the employment handbook, which included making comments about the plaintiff’s appearance after her store began a weight loss competition. The plaintiff repeatedly asked the employee to stop his comments, but he refused. The plaintiff then completed an anonymous survey for her employer mentioning the sexual comments.  After reviewing the surveys, Quick Check immediately ordered an investigation. The investigation included speaking with the plaintiff’s supervisor, speaking to HR, and meeting with Quick Check’s general counsel.

The company issued the supervisor a formal “constructive advice” letter that conditioned his continued employment.  The conditions stipulated that he must refrain from making inappropriate comments, must not retaliate against the plaintiff, must attend a harassment program, and must decline assignments that would put him in contact with the plaintiff. The plaintiff then went on disability leave and asked for the accused to be demoted or moved to a different region. Instead, she never returned from disability leave and filed a complaint alleging a hostile work environment and retaliation in violation of the NJLAD.

The trial court dismissed the case, concluding that Quick Check had “effective procedures for reporting and responding to complaints of harassment.” It further stated that Quick Check “did, in fact, respond in an effective way to [plaintiff’s] complaint of harassment.” On appeal, the Court concluded that summary judgment was properly granted because of the effective anti-harassment policy in place and the company’s swift response to the complaint. Further, the employee never harassed the plaintiff again or any other employee, for that matter, after receiving the notice of corrective action.

The recent trend of cases in this area clearly demonstrate the importance for employers to have anti-harassment policies in place, as well as compliance with these policies when a complaint of harassment is made.

TracyBusselTracy Bussel, Esq., is a partner at Gebhardt & Kiefer, PC, and practices primarily in the areas of employment law, civil rights litigation, general liability, insurance defense, and the representation of public entities.  Contact Ms. Bussel at 908-735-5161 or via email.

If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.