EMPLOYER BEWARE - YOU CAN BE LIABLE FOR HARASSMENT

It’s Time to Review and Update Your

Employment Policies & Procedures

by Carolyne S. Kalson, Esq.

 

In September of 2008, the Appellate Division decided the case of Cordeira vs.Martindale

Hubbell and held that an employer may be liable for sexual harassment by a coworker even though it was unaware and not reported by the employee.  In that case, the employer had a code of conduct prohibiting sexual harassment which was received and signed for by plaintiff.  Previously, the Court ruled that an employer could be liable under a negligence theory for failure to have harassment policies in place or failure to properly investigate complaints made pursuant to the policy.  The realm of liability is now expanded. 

 

            In Cordeira, the Court stated that sexual harassment at the workplace is foreseeable even where anti-harassment policies exist.  The Court reiterated the five requirements set forth in Lehman vs. Toys R Us that an employer must have in placeto guard against negligence and liability.

 

                        1.         Policies;

                        2.         Complaint structures, both formal and informal.

                        3.         Training, mandatory for supervisors and managers and offered  to all members of the organization.

                        4.         Sensing or monitoring mechanisms, to find out if the policies

                                    and complaint structures are trusted.

                        5.         An unequivocal commitment from the top that is not just words  but backed up by consistent practice.

 

            Remember, your policies must not be limited to sexual harassment but rather to all protected classes which continue to grow under the Law Against Discrimination.  Religious and Disability Discrimination is on the rise.  Moreover, even one isolated remark can give rise to liability. In Kwiatkowski vs. Merrill Lynch, the Court held than calling an employee a “stupid fag” constitutes hostile work environment based on sexual orientation.

 

            Although you can not prevent employee lawsuits, you can take steps to avoid potential liability.  Provide training and monitor its success.  Document employee receipt of the policy and training.  If you observe any offensive contact stop it immediately.  Take it seriously because it can ruin your business.   If you would like more information on this subject,  kindly contact my office at 732-785-0800.

 

            DISCLAIMER : This article provides general information only and is not intended as legal advice.  This article expresses the opinion of the author only and not the Brick Township Chamber of Commerce

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