Key Issue: Even established policies and reasonable communication might not shield New Jersey employers from vicarious liability for a supervisor's sexual harassment of a subordinate.

The Case: Maria Gaines v. Bellino et als., New Jersey Supreme Court, A-47-01 (2002)

Maria Gaines was a corrections officer at the Hudson County Jail. One night when she was assigned to the midnight shift, two superior officers (a captain and a sergeant) entered the room where she was working. After the sergeant left, Gaines claims that the captain grabbed her and forcibly kissed her.

Within the next few hours, Gaines described the incident to three colleagues. All of them acknowledged that she appeared to be very distraught, shaking and crying. One described her demeanor as "hysterical." All of her colleagues suggested that she report the incident, but she said no one would believe her and that she feared for her safety.

The next day, Gaines confronted the sergeant, suggesting that he and the captain orchestrated the incident. The sergeant denied the allegation and suggested that she report the incident. She also reported the incident to another sergeant, who also advised her to file a complaint, although at trial, he confirmed that he had not received any antisexual harassment training during the time the alleged incident occurred. Again, no reports were made, and no action was taken.

Sometime later, the captain talked about the kissing incident in mixed company that included high-ranking officers, as well as Gaines. He also told a midnight tour commander of his escapade and said that even if he had raped her, no one would believe her. He then suggested a rape by himself, the tour commander, and another officer who had entered the room. No reports were made. No action was taken.

Ultimately, following nonrelated reports, Gaines's complaint came to the attention of the facility warden and the county's personnel director. Following an investigation, the captain was suspended and eventually retired. Nevertheless, Gaines filed suit against the captain and her employer, alleging violations of the New Jersey Law Against Discrimination.

The county asked for dismissal. The trial and appellate courts found in favor of the county because it had published a workplace antiharassment policy, Gaines failed to report the incident(s) in accordance with the policy, and the county took disciplinary action as soon as it learned of the allegations.

However, the New Jersey Supreme Court determined that the county's actions weren't adequate enough to warrant dismissal, challenging, among other things, the lack of managerial and supervisory training. The court's decision emphasizes that without proper communication, training, early investigation, and appropriate intervention, employers are at risk when a case reaches the courthouse. "Our review of the motion record, allowing the plaintiff employee all reasonable inferences in her favor, reveals that at trial a fact-finder could conclude that the employer had in place an antiharassment policy in name only."

Compliance quote. Unfortunately, federal and state antidiscrimination laws (including sexual harassment assertions) do not eliminate the problems. They simply provide a means by which victims can seek legal recourse for abuses they might have suffered. The laws and regulations also provide employers with guidelines regarding an organization's rights and responsibilities as they relate to unlawful discrimination and/or harassment activities.

Experts emphasize that too many employers still don't do enough to prevent the possibility of discrimination/harassment claims. Writing and distributing a policy just isn't adequate.

The New Jersey Supreme Court's decision in this case underscores expert opinion: "There are genuine issues of material fact concerning whether the County of Hudson had implemented an antisexual harassment workplace policy that provided realistic preventative and protective measures for employees in the event that harassment occurred ?."

Even Gaines's failure to file a formal complaint did not absolve the employer's responsibility to proactively administer and enforce its written and frequently published policy. Among other things, the absence of "effective preventative mechanisms," like training, may lead to a conclusion that the employer is guilty of negligence and vicarious liability.