Before Judges Pressler, Ciancia and Arnold.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
This is a hostile work environment sexual harassment action still in its discovery stage. The gravamen of the complaint is that plaintiff, K.S., a member of the bar of this State, was raped twice by defendant A.F., one of the partners of the firm by which she was employed as an associate between August 1996 and April 1997, when she left on psychiatric disability leave and did not return. The first rape is alleged to have occurred in Boston in October 1996 when she and A.F. were attending a seminar there together, and the second in January 1997 when she had to stay overnight in Atlantic City on litigation business. She also alleged that in December 1996, A.F. attempted to sexually assault her when they were returning from a business meeting. She filed this complaint against the law firm, ABC Professional Corporation, and each of its partners in January 1998. Her husband, B.S., who sues per quod and is not an attorney, is appearing pro se.
During the course of the depositions of some of the partners of the firm other than A.F., plaintiff K.S., by her attorney, and B.S., pro se, sought to examine them about their consensual and voluntary sexual relations, if any, with any woman who had ever worked for the firm as an associate or secretary. Defendants' attorney made a telephone application to the court pursuant to R. 4:14-4 to limit the scope of the examination by barring this line of inquiry. That attorney represents the firm and all the partners except A.F., who is separately represented. Upon denial of the application, defendants filed a motion seeking the same relief by way of a protective order under R. 4:10-3(d). The motion was denied, the judge, not the judge who heard the telephone application, ruling that "[p]laintiff is permitted to inquire at depositions about any and all sexual relationships or conversations of a sexual nature between the partners and employees of the firm, including associates and clerical staff." Defendants moved for leave to appeal, claiming that their voluntary, consensual and welcomed sexual liaisons were beyond the scope of discovery in this case. We granted leave to appeal, and reverse the order to the extent it includes the required disclosure of such liaisons.
It is important to point out at the outset that our reference hereafter to defendants includes only the law firm and the partners other than A.F., the alleged assailant, whose defense is based on the alleged consensual nature of his relationship with K.S.
To begin with, we appreciate the broad scope of permissible discovery. We understand that discovery is not limited to obtaining admissible information but, rather, includes the obtaining of any information, not otherwise privileged, that "appears reasonably calculated to lead to the discovery of admissible evidence...." R. 4:10-2(a). See, e.g., Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 535 (1997). On the other hand, the scope of discovery is not infinite. It is limited by R. 4:10-2(a) to information that is "relevant to the subject matter involved in the pending action...." The definition of relevancy in this context is supplied by N.J.R.E. 401. Evidence is relevant if it has a "tendency in reason to prove or disprove any fact of consequence to the determination of the action." See Payton, op cit., supra. Obviously the line of questioning that is the subject of the court's order here, to the extent it includes sexual relations between consenting adults, is unavoidably offensive to the person being interrogated, impinging, as it does, on the most intimate details of one's life and rending the cloak of privacy to which such matters are customarily entitled. That consideration would not, however, be sufficient by itself to warrant a protective order. We reverse the denial of that protection here because our review of the record convinces us this information, in this case, is not relevant to plaintiffs' hostile work place theory against defendants since it cannot "in reason ... prove or disprove any fact of consequence to the determination of the action" as it has been pleaded and prosecuted by defendants.
In coming to that conclusion, we start with the complaint. Plaintiffs allege that K.S. was hired as a senior associate in the environmental coverage department of defendant law firm, which then consisted of about 26 lawyers, both partners and associates. A.F. was the head of that department. Consequently, A.F. was K.S.'s supervisor and they worked closely together. We think it is perfectly clear that if she had been raped by her supervisor as she alleges or if he had acted improperly towards her in a sexual manner, then, aside from any cause of action for assault she would have against him, she was certainly being subjected thereby to a hostile work environment. Rape is surely the ultimate form of sexual harassment. Having to have daily professional contact with a supervisor by whom one has been raped twice, subjected to other unwanted sexual contact, and threatened with loss of employment and other professional reprisals may well be the ultimate in a sexually harassing hostile work place environment. But we are not concerned here with A.F.'s creation of and responsibility for this hostile work environment. If he raped K.S. or otherwise sexually assaulted her, his responsibility is obvious. The issue before us, rather, concerns the responsibility of the law firm and its other partners for A.F.'s alleged actions and the scope of K.S.'s legitimate discovery of facts tending to prove the nature and scope of that responsibility.
As a matter of factual context, it is, first, not disputed that during the entire course of her employment, from August 1996 to April 1997, K.S. did not complain to anyone in the firm about A.F.'s alleged actions. She surmises that any such complaint would have been futile and she would not have been believed. We will return to that theme later, but note for now that there is nothing at all in the complaint to substantiate her bare allegation that the other partners, or any of them, actually knew about A.F.'s alleged conduct or to substantiate her surmise that A.F. probably told them about it himself. Indeed, her primary leitmotif is not that defendants knew of A.F.'s conduct but that they should have known. And the only reason alleged in the complaint for this constructive knowledge is that "A.F. was or should have been observed by the Principals spending an inordinate and inappropriate amount of time with K.S. in her offices, observing her and her activities." The suggested implication is that one or more of the partners should have realized that the time A.F. spent in K.S.'s office exceeded the normal demands of their close professional association, and, moreover, that the reason therefor was that A.F. had sexually harassed her, or was harassing or was proposing to harass her. Indeed, her express allegation is that defendants were negligent in not coming to this realization and, therefore, in not protecting her from A.F.
This theory was somewhat differently developed during the course of discovery. During her deposition, K.S. took the stance that the other partners were themselves sexually irresponsible in their relationships with other women associates and female secretaries, thereby creating an environment that condoned, if not actively encouraged A.F., and leading her to the reasonable conclusion that they would not take any action against A.F. even if she had told them he had raped her. In sum, the apparent theory then advanced was that because of their own conduct, they would tolerate sexual harassment by any of the other partners, including rape. At the least, she surmised, they would construe her accusation of rape as her having been A.F.'s willing partner.
We think it clear that by advancing these theories of her case, K.S. was endeavoring to invoke the principles of employer liability for the sexual harassment of an employee by her supervisor as defined by Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993). There is no question of the employer's strict liability for equitable damages and relief. Id. at 592. But the only proof required to impose strict liability is the employment relationship between the employer, the harassing supervisor and the harassed employee. The employer's conduct becomes relevant only when compensatory and punitive damages are sought, as is the case here. Lehmann makes it clear that vicarious liability for purposes of imposing compensatory damages may be imposed even when the alleged conduct of the supervisor is beyond the scope of his employment, and, patently, the rape of an employee committed by a supervisor outside the workplace is beyond the scope of the supervisor's employment. Id. at 624. As Lehmann summarized the circumstances warranting the imposition of vicarious liability for a supervisor's conduct that is outside the scope of his employment:
Moreover, even if the supervisor acted outside the scope of his or her employment, the employer will be vicariously liable if the employer contributed to the harm through its negligence, intent, or apparent authorization of the harassing conduct, or if the supervisor was aided in the commission of the harassment by the agency relationship. Thus, an employer can be held liable for compensatory damages stemming from a supervisor's creation of a hostile work environment if the employer grants the supervisor the authority to control the working environment and the supervisor abuses that authority to create a hostile work environment. An employer may also be held vicariously liable for compensatory damages for supervisory sexual harassment that occurs outside the scope of the supervisor's authority, if the employer had actual or constructive notice of the harassment, or even if the employer did not have actual or constructive notice, if the employer negligently or recklessly failed to have an explicit policy that bans sexual harassment and that provides an effective procedure for the prompt investigation and remediation of such claims. [Id.]
Relating these principles to plaintiffs' pleading and discovery allegations, we understand them to be predicating their claim of vicarious liability on (1) defendants' asserted contribution to the harm through their negligence, intent or apparent authorization of the harassing conduct; (2) defendants' actual or constructive knowledge of the harassing conduct; and (3) defendants' negligent or reckless failure to have an effective policy banning sexual harassment providing an effective procedure for the prompt investigation and remediation of ...