Employer Liability for Non-Supervisory Employees

Employers may be liable for sexual harassment committed by non-supervisory employees against co-workers even where the employer is unaware of the alleged conduct.

In Cerdeira v. Martindale-Hubbell, Docket No. A-5855-06T1, the New Jersey Appellate Division held an employer may be liable under the New Jersey Law Against Discrimination (“NJLAD”) for the harassing conduct committed by a non-supervisory employee against another rank-and-file employee if the employer fails to establish and enforce effective policies against sexual harassment in the workplace.

In early 2001, Ms. Cerdeira, an employee of Martindale-Hubbell, began experiencing sexual harassment by a non-supervisory co-worker in the form of sexually explicit photographs; inappropriate, offensive and sexually charged language; and was the recipient of offensive items including a bra and thong underwear. Although she advised another co-worker of the incidents, Ms. Cerdeira did not complain to a supervisor until 2003, approximately 2 years after the harassment began.

Although the Company’s Human Resources Department immediately investigated the complaints and the harasser was subsequently terminated, Ms. Cerdeira filed an action for hostile work environment sexual harassment in violation of the “NJLAD.” The trial court granted summary judgment to Martindale-Hubbell and Ms. Cerdeira appealed contending Martindale-Hubbell demonstrated it negligence in failing to have an effective sexual harassment policy in place.

The Appellate Division held the trial court should have determined whether Martindale-Hubbell’s policy provided a ‘reasonable avenue’ through which plaintiff could have complained. If the Company did not have such ‘reasonable avenues,’ the Appellate Division opined the trial court should determine whether the absence of a reasonable policy was causally related to any harm alleged by the plaintiff. The Appellate Division held the trial court erred in its decision by deciding plaintiff’s claims lacked legal merit.

To permit offending co-workers to engage in this conduct, the Appellate Division cautioned could “discourage employers from adopting proactive sexual harassment policies that are well-publicized and directed to all employees.”

Because of the widespread impact of this decision, employers are urged to revisit their own policies and provide mandatory training for all employees, not just supervisors and managers so that all employees are aware of the procedure for filing a complaint and supervisors are aware of their obligations if a complaint is filed.

For more information or to inquire about providing training to your Company’s employees contact Robert A. Tandy, Esq. at (201) 474-7103.