1 Presented by: Annmarie Simeone Norris McLaughlin & Marcus, P.A. Somerville, NJ 08876-1018 908-722-0700 [email protected] SEXUAL HARASSMENT: CHALLENGES.

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Presented by:

Annmarie SimeoneNorris McLaughlin & Marcus, P.A.Somerville, NJ [email protected] Attorneys at Law

SEXUAL HARASSMENT: SEXUAL HARASSMENT: CHALLENGES IN THE EVOLVING CHALLENGES IN THE EVOLVING WORKPLACEWORKPLACE


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Attorneys at LawSTATISTICS*STATISTICS*

2006 EEOC received 12,025 sex harassment complaints

Annually, victims of sex harassment recoup upwards of $50 million from EEOC cases alone (not including NJ Division of Civil Rights complaints)

Innumerable cases in state court

The high profile case - $11.6 million punitives in Knicks case.

*Star Ledger Op Ed, October 2007, following jury award in Knicks case.

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Attorneys at Law

DEFINITIONS OF HARASSMENTDEFINITIONS OF HARASSMENT

Types of Harassment

Quid pro quo ‑ (literally, “this for that”) an employee’s job advancement or continued employment or employment assignments are conditioned on submission to sexual demands or an employee suffers job detriment for refusing to submit to demands.

Hostile work environment ‑ conduct that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

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Attorneys at Law

THE FOUR PART TESTTHE FOUR PART TEST

Courts will use a four part test to determine whether a hostile working environment exists:

The complained‑of conduct …

1) would not have occurred but for the employee’s gender,

2) and was severe or pervasive enough to make a

3) reasonable woman believe that (not hypersensitive plaintiffs)

4) the conditions of employment are altered and the working environment is hostile or abusive.

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Attorneys at Law

THE NEW JERSEY SUPREME COURT’S THE NEW JERSEY SUPREME COURT’S LEHMANN DECISIONLEHMANN DECISION

Lehmann v. Toys ‘R’ Us, Inc.

Addresses the scope of an employer’s liability for a supervisor’s sexual harassment that results in a hostile work environment.

To state the claim:

a “female plaintiff must allege conduct that occurred because of her sex and that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment.”

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Attorneys at Law

““THE HOOK”THE HOOK”

Sex Race Age Religion Color National Origin Disability Marital Status

Sexual Orientation Gender Identity Domestic Partners Civil Unions Military Service

Protected Classes:

You can’t discriminate against these classes.

You can’t harass someone because they belong to one of these classes.

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Attorneys at Law

SOME EXAMPLES OF SEXUAL SOME EXAMPLES OF SEXUAL HARASSMENT - HARASSMENT - VerbalVerbal

Referring to an adult as a girl, hunk, doll, babe, or honey Whistling at someone, cat calls Making sexual comments about a person's body Making sexual comments or innuendoes Turning work discussions to sexual comments Telling sexual jokes or stories Asking about sexual fantasies, preferences, or history Asking personal questions about social or sexual life Making sexual comments about a person's clothing, anatomy, or

looks Repeatedly asking out a person who is not interested Making kissing sounds, howling, and smacking lips Telling lies or spreading rumors about a person's personal sex life

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Attorneys at Law

SOME EXAMPLES OF SEXUAL SOME EXAMPLES OF SEXUAL HARASSMENT - HARASSMENT - Non-VerbalNon-Verbal

Looking a person up and down (elevator eyes)

Staring at someone

Blocking a person's path

Following the person

Giving personal gifts

Displaying sexually suggestive visuals

Making facial expressions such as winking, throwing kisses, or licking lips

Making sexual gestures with hands or through body movements

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Attorneys at Law

SOME EXAMPLES OFSOME EXAMPLES OFSEXUAL HARASSMENT - SEXUAL HARASSMENT - PhysicalPhysical

Giving a massage around the neck or shoulders

Touching the person's clothing, hair, or body

Hanging around a person

Hugging, kissing, patting, or stroking

Touching or rubbing oneself against another person

Standing close or brushing up against a person

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Attorneys at Law

Harris v. Forklift Systems, Inc. (U.S. Supreme Court)

A plaintiff does not need to show psychological injury in order to prevail on a claim of hostile work environment sexual harassment. (i.e., plaintiff need not prove the harassment “seriously affected [her] psychological well-being or led her to suffer injury.”)

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Attorneys at Law

Tarr v. Ciasulli(N.J. Supreme Court)

Plaintiff can obtain redress for mental anguish, embarrassment without showing severe emotional or physical ailment.

Less stringent standard of proof than required for tort-based emotional distress cause of action.

Expert may not be necessary to meet proofs.

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Attorneys at Law

GENERALIZED HARASSMENTGENERALIZED HARASSMENT

Lombardi v. Cosgrove (Federal) One outburst by supervisor in which he used

curse words not enough to make a working environment hostile or abusive.

Dungee v. Northeast Foods, Inc. (Federal) Stray Remarks Doctrine

BUT SEE

Ferraro v. Bell Atlantic (State) Single outburst where supervisor referred to

employee as a “bitch” may be evidence of hostile work environment.

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Attorneys at LawAIDER/ABETTOR LIABILITYAIDER/ABETTOR LIABILITY

* Liability for discrimination when one knowingly gives substantial assistance or encouragement to the unlawful conduct of the employer.

Consider:

1) The nature of the act encouraged

2) The amount of assistance given by the supervisor

3) Whether the supervisor was present at the time of the asserted harassment

4) The supervisor’s relations to the others, and

5) The state of mind of the supervisor

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Attorneys at LawAIDER/ABETTOR LIABILITYAIDER/ABETTOR LIABILITY(CONT’D)(CONT’D)

Brown Sanders alleged Thomas aided and abetted the harassment of MSG. The jury found “yes” as to hostile work environment, but “no” as to retaliation (because Dolan said he was sole decision maker on her termination following complaints of harassment).

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Attorneys at Law

RESPONSIBILITY FOR ACTS OF RESPONSIBILITY FOR ACTS OF FELLOW EMPLOYEES AND FELLOW EMPLOYEES AND OUTSIDERSOUTSIDERS

An employer may be responsible for the acts of non-employees where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

The EEOC has issued guidelines on sexual harassment which prohibit harassment by both fellow employees and non-employees:

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Attorneys at Law

CO-WORKER HARASSMENTCO-WORKER HARASSMENT

When a co-worker engages in harassing conduct, the employer is liable only if management knew, or in the exercise of reasonable care should have known, about the campaign of harassment and failed to take prompt remedial action.

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Attorneys at Law

THIRD PARTY HARASSMENTTHIRD PARTY HARASSMENT

Third party harassment is always a matter of hostile work environment harassment.

Employer liability is based on negligence: Whether the employer knew or should have known of the harassment and failed to take reasonable corrective action.

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Attorneys at Law

THIRD PARTY HARASSMENTTHIRD PARTY HARASSMENT

CONTROL EEOC GUIDELINES – Employer liability depends “on

the basis of the total facts and circumstances of each case, including employer knowledge, corrective action, control, and other legal responsibility.”

An employer who condones or tolerates the creation of a hostile work environment should be held liable regardless of whether the environment was created by a co-employee or a non-employee, since the employer ultimately controls the conditions of this work environment.

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Attorneys at Law

RETALIATIONRETALIATION

The NJLAD provides that “[i]t shall be an unlawful employment practice **** for any person to take reprisals against any person because he/she has opposed any practices or acts forbidden under this act or because he/she has filed a complaint, testified or assisted in any proceeding under this act.” N.J.S.A. 10:5-12d.

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Attorneys at Law

RETALIATIONRETALIATION(CONT’D)(CONT’D)

Goal of recognizing retaliation claim:

“to promote the integrity of the underlying antidiscrimination policies of the Act by protecting against reprisals ‘any person’ who has sought to protect his or her own rights not to be discriminated against or who has acted in support of such conduct.”

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Attorneys at Law


Under LAD, a person engages in “protected activity” when that person opposes any practice that is unlawful under the LAD, such as gender discrimination.

EXAMPLE: The plaintiff employee engaged in a protected activity when she turned to various levels of management with complaints regarding work environment sexual harassment and where management knew of the harassment.

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Attorneys at Law


A plaintiff must show an employer’s retaliatory motive

Usually there is no smoking gun document. Courts allow plaintiffs to rely on surrounding circumstances as evidence of retaliatory motive, such as:

1) Plaintiff was singled out by the company for enforcement of certain rules

2) The company failed to perform a thorough investigation of plaintiff’s complaints

3) The company initiated an extensive investigation of her work history

4) An employer’s timing in reassignment or termination – did it coincide with complaints of harassment?

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Attorneys at Law

E-MAIL/INTERNET ISSUESE-MAIL/INTERNET ISSUES

People will say in email what they would never say in person

Email is a record Delete does not mean delete Employers will respond to harassing email

under the same standards applicable to all harassment claims

Emails can be evidence of other claims of discrimination

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Attorneys at Law

E-MAIL POLICIES/ISSUESE-MAIL POLICIES/ISSUES

Blakey v. Continental Airlines

Co-employees who allegedly published derogatory and insulting remarks about plaintiff on an on-line computer bulletin board which they knew would be published in New Jersey, could be subject to jurisdiction in New Jersey.

Also, simply because electronic bulletin board was located outside of the workplace it does not mean it is not part of the workplace and did not mean that employer might have no duty to correct harassment taking place through use of the electronic source.

Harassment can occur in a “work-related” setting.

Under Blakey, employer did not have duty to monitor employee’s private communications in NJ. This changed in 2005 in Doe v. XYC.

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Attorneys at Law

Employer’s Duty To Stop/ Employer’s Duty To Stop/ Report Worker’s Porn SurfingReport Worker’s Porn Surfing

Doe v. XYC Corporation Prior to Doe, employers were obligated to protect employees

from hostile work environment.

Ruling in this case expands that obligation to protect 3rd parties.

“We hold that an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee’s activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer.”

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Attorneys at Law

E-MAIL/INTERNET POLICIESE-MAIL/INTERNET POLICIES

Personal use of E-Mails/Internet at work is very high

Companies must respond under the same standards applicable to all harassment claims

Evidence of Other Claims of Discrimination

Adopt E-Mail/Internet Policies

Reserve the Right to Review and Monitor

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Attorneys at Law

ELECTRONICALLY STORED INFORMATIONELECTRONICALLY STORED INFORMATION

Both federal and state courts now allow for the demand and production of electronically stored information.

– How Does This Relate to Sex Harassment?

Predominance of e-mails and use of electronic means to perpetuate harassment

Proof of effective policies

Litigation preparation

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Attorneys at Law

Where Do You Find Electronically Where Do You Find Electronically Stored Information (ESI)?Stored Information (ESI)?

• Laptops/Desktops• Servers• Phone Systems (VoIP)• Printers & Copiers • PDA’s/Cell Phones• CD’s/DVD’s• USB Thumb Drives

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Attorneys at Law

Production of DocumentsProduction of DocumentsR.R. 4:18-1 & 4:18-1 & FRCPFRCP 34 34

Amendment ImplicationsEmployer defendants are integral part of process:

Assess and understand company’s information management

Meta data is potentially discoverable; sound recordings are also to be considered as potentially discoverable

Attorney and client must work to identify:

– key custodians

– relevant ESI on the client’s system

– locations of data storage devices

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Attorneys at Law

Production of DocumentsProduction of DocumentsR. 4:18-1 & FRCP 34R. 4:18-1 & FRCP 34

Amendment Implications

Preservation obligation attaches once “triggers” surface:

– notice of a lawsuit

– litigation that is “reasonably anticipated”

Attorney and client must preserve ESI

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Attorneys at Law



Notify employees of obligations to preserve ESI

Consider offices in other geographic locations

Formulate a cost-effective strategy for reviewing and managing ESI

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Attorneys at Law



Suspend automated document destruction policies, and place “hold” on key ESI

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Attorneys at Law

Production of DocumentsProduction of DocumentsR.R. 4:18-1 & 4:18-1 & FRCPFRCP 34 34(CONT’D)(CONT’D)

Litigation “holds” must be:– communicated in writing – issued by someone with authority – tailored to identify purpose of the hold – specific in detailing which data should

be maintained and why – periodically confirmed

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Attorneys at Law

Case Management ConferenceCase Management ConferenceR.R. 4:5B-2, 4:5B-2, R.R. 4:10-2 & 4:10-2 & FRCPFRCP 16 16


Implement procedures to ensure compliance Discuss the “reasonable accessibility” of ESI Must make these efforts a “high priority” Assemble team of corporate representatives Formalize instruction to employees in writing Monitor employee preservation efforts Factor costs of e-discovery in litigation budget

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Attorneys at Law

EMPLOYER DEFENSESEMPLOYER DEFENSES

Smith v. Nordstrom

A company which has a (1) well-publicized anti-harassment policy (2) with an effective complaint structure, and (3) which responds promptly and forcefully when apprized of misconduct, cannot be held vicariously liable for that misconduct.

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Attorneys at Law

EMPLOYER DEFENSESEMPLOYER DEFENSES

Gaines v. Bellino. et al. Plaintiff, a County employee, alleged she was sexually

harassed by a supervisor in 1990. Her co-workers encouraged her to file a formal complaint against him, as permitted under the sexual harassment policy in place. She initially chose not to file a formal complaint. However, she did informally complain to various people, including supervisors. Employer was denied affirmative defense. Supervisors admitted they had not received training on anti-harassment. Supervisors joked when they heard complaint or told her to drop it because no one would believe plaintiff. “An employer’s anti-harassment policy must be more than the mere words encapsulated in the policy.”

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Attorneys at Law

PREVENTIVE POLICIESPREVENTIVE POLICIES

1) Formal policies prohibiting harassment in the workplace.

2) Complaint structures for employees’ use, both formal and informal.

3) Anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization.

4) The existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures.

To establish an effective anti-harassment policy in the workplace, an employer must establish the following:

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Attorneys at Law

PREVENTIVE POLICIESPREVENTIVE POLICIES(CONT’D)(CONT’D)

5) An unequivocal commitment from the highest level of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.

6) Formalize instruction to employees in writing

7) Monitor employee preservation efforts

8) Factor costs of e-discovery in litigation budget

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Attorneys at Law

PREVENTIVE POLICIESPREVENTIVE POLICIES(CONT’D)(CONT’D)

An employee’s known or suspected illegal activities impose new duties on employers:

1) Conduct thorough investigation.

2) Take prompt and effective remedial action to stop the activities (may need to terminate employee).

3) Prevent harm to third parties is the goal.

4) May need to enlist help of law enforcement under appropriate circumstances.

5) Preserve evidence to justify and explain employer’s actions.

Failure to comply with these duties can subject employer to liability to third parties harmed by the illegal activities.

(Doe v. XYC case)

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Attorneys at Law

TO DETERMINE IF YOUR BEHAVIOR IS TO DETERMINE IF YOUR BEHAVIOR IS INAPPROPRIATE, ASK YOURSELF THE INAPPROPRIATE, ASK YOURSELF THE FOLLOWING:FOLLOWING:

1) Would you behave the same way (or say the same things) if a family member was within hearing distance?

2) How would your comments or behavior appear to others if it were featured on the front page of your local newspaper or in a clip on the evening news?

3) Would you want someone to behave the same way toward your son or daughter?

4) Is there equal power and participation between the person I’m interacting with?

5) Would I act the same way with my supervisor or if my supervisor was watching?

WHEN IN DOUBT, DON’T!!

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Presented by:

Annmarie SimeoneNorris McLaughlin & Marcus, P.A.Somerville, NJ [email protected] Attorneys at Law

