The New Jersey Supreme Court recently overturned a decision of a lower Court that prevented testimony alleging a Mayor ordered an after-the-fact cover-up of sexual harassment in a city employee’s suit alleging discrimination. In doing so, the Court may have signaled its approval of an expanded scope of analysis to allow examination of an employer’s corporate attitude and culture before allowing defenses based on the creation and enforcement of anti-discrimination policies.
In Griffin v. City of E. Orange, 225 N.J. 400 (2016), several female city employees sued their male supervisor and their employer, the City of East Orange, alleging that their supervisor’s unwanted sexual advances constituted sexual harassment, violating New Jersey’s Law Against Discrimination (“LAD”). To prevail in a suit against a supervisor, a plaintiff must prove that, because of her sex, she was subjected to conduct that a reasonable woman would find to be severe or pervasive enough to alter the conditions of her employment and to constitute a hostile or abusive environment. To hold their employer liable for the harassment, the plaintiffs in Griffin also had to prove either that the City was negligent in preventing the supervisor’s conduct or that the supervisor’s position aided him in his harassing conduct. In turn, the City, as employer, was entitled to an affirmative defense, if it proved it implemented and enforced an effective anti-discrimination policy.
After the plaintiffs filed internal complaints regarding their allegations of harassment, the employer City hired an independent party to investigate the claims. During the investigation, a co-worker was interviewed and made statements to undercut the plaintiffs’ credibility while supporting the supervisor. Later, during a deposition for this lawsuit, the same co-worker confessed that the statements she made to the investigator were false, and that she made them at the direction of the mayor.
At the trial of the claims, the trial court prevented the co-worker from testifying. In overturning that decision, the New Jersey Supreme Court may have expanded the scope of the Court’s inquiry in considering an employer’s defense based on an anti-discrimination policy. In an important decision in 2015, Aguas v. State, 220 N.J. 494, the Supreme Court clarified that employers could use an anti-harassment policy as an affirmative defense to liability for harassment claims made against their supervisors. Here, the Supreme Court not only reaffirmed that a defense based on an anti-discrimination policy requires that the policy be effective and not “exist in name-only,” but also held that “the attitude of City officials toward sexual harassment is at the core of plaintiffs' hostile work environment harassment claim.”
In so doing, the Court may have signaled a new emphasis on examining not just the official anti-discrimination policies of employers, but their corporate culture more generally. Such a shift could conceivably lead to expanded, and thus costlier and more invasive discovery and protracted litigation. As a result, employers must continue to emphasize building healthy corporate cultures in practice and not just on paper.
Hoagland Longo attorneys are available to assist employers in their compliance efforts and to represent employers and individuals in matters before state and federal courts and administrative agencies. For more information about anti-harassment and discrimination policies and procedures, or for any other labor and employment questions you may have, please contact me at firstname.lastname@example.org or 733-545-4717.