On certification to the Superior Court, Appellate Division.
In this appeal, the Court addresses whether the employer, County of Hudson (County), implemented an effective anti-sexual harassment workplace policy such that the County should be insulated from vicarious liability in a discrimination claim based on hostile work environment. Because the matter was resolved on motion for summary judgment granted to the County, the Court considers the facts in a light most favorable to Maria Gaines.
In August 1989, Maria Gaines was hired by the County to work as a Corrections Officer at the County Jail. At that time, Gaines received a copy of the County's Sexual Harassment Memorandum, dated December 9, 1988, and received updates issued in the 1990 and 1994 Employee Handbooks.
In 1998, Gaines filed suit against her supervisor, Captain Joseph Bellino, and the County of Hudson and its Correctional Facility, alleging, among other things, violations of the New Jersey Law Against Discrimination (LAD), arising from sexual harassment constituting a hostile work environment. For purposes of this appeal, only Gaines' LAD claims are at issue.
In December 1990, Gaines was assigned to the midnight shift in the section of the jail known as Modular One South. Gaines claims that one evening Captain Bellino and Sergeant Montenez entered the room where she was working. Shortly thereafter, Montenez left the room. Gaines claims that Captain Bellino grabbed her face and kissed her, forcing his tongue into her mouth.
Immediately after the incident, Gaines told Lavara Ladson, another corrections officer working that night, what had happened. Ladson testified that Gaines was shaking and crying as she described the incident. Officer Ladson suggested that Gaines "write up" Bellino. Gaines also told Corrections Officer Senora Williams about the incident. Williams testified that Gaines looked as if she had been crying and that she advised Gaines to "watch herself." Finally, Officer Minnie Perez testified that Gaines had telephoned her at home on that night and recounted the incident to her. Perez described Gaines as "hysterical." Perez suggested to Gaines that she report Bellino but Gaines responded that no one would believe her and that she feared for her safety.
The following workday, Gaines confronted Sergeant Montenez, believing that he and Bellino had arranged the incident. He denied that accusation and suggested that Gaines report Bellino. Gaines also told Sergeant Arroyo that Bellino had forcibly kissed her. Although he advised her to file a complaint, Arroyo did not tell anyone about the incident and testified that he had not yet had any anti-sexual harassment training during that time.
In January 1991, Bellino asked Gaines to accompany him to the construction site of the new jail facility. Bellino brought up the kissing incident and assured Gaines that he "would not force himself" on her again and that he would protect her. Gaines claims that when she told Bellino she wished to return to her post, he blocked her exit with his arms, repeating that she need not fear him.
In Gaines' presence, Bellino raised the kissing incident with several high-ranking officers. In 1993, he told Captain Kelly. According to Gaines, Kelly laughed and covered his ears "like he always does." In 1995, Bellino raised the incident with Captain Flynn, the Tour Commander on the midnight shift from 1993-1995. After telling Flynn about kissing Gaines, Bellino suggested that if he raped Gaines, no one would believe her. Bellino also suggested a rape by he, Flynn, and Lieutenant Krusznis, who also had entered the room.
Warden Green began receiving anonymous calls in mid-to late 1993 regarding activities during the
midnight shift. When he was asked about these calls, Sergeant Montenez advised Warden Green to contact Gaines. Although Green became aware sometime in 1994 of Gaines' allegations, he did not contact her until 1995. In an interview, Gaines told Warden Green that she felt she was being retaliated against and moved from post to post because of the incident with Bellino. Green asked Gaines to file a complaint but she refused, stating that she feared for her safety. Green and Gaines discussed this matter again. Green reminded Gaines that there was a complaint form in the Employee Handbook and advised her to use it to file a complaint against Bellino. Gaines still refused. Thereafter, Warden Green issued a "cease and desist" letter to Bellino and Flynn. Green explained that this was done whenever someone alleged sexual harassment.
In June 1996, the County's Personnel Director, Lawrence Henderson, became aware of Gaines' allegations of sexual harassment. Henderson contacted Gaines who told him about the incident in Modular One South. Henderson interviewed several individuals and, in December 1996, the County filed disciplinary charges against Bellino for his harassing behavior. Following a hearing, the hearing officer concluded that the "kissing incident" had been proven but that all charges against Bellino should be dismissed. In the alternative, the hearing officer recommended a thirty-day suspension without pay. The County suspended Bellino.
Other facts presented demonstrate that there was an anti-sexual harassment policy but that numerous employees had not received training. In addition, an employee of the midnight shift who experienced sexual harassment had to report it to Flynn or Bellino, notwithstanding the "bypass" mechanism provided in the Employee Handbook. Moreover, there was conflicting testimony on notification of the policy to employees. Finally, there was evidence submitted to demonstrate that the County's policies were loosely enforced at the jail.
In their summary judgment motions, Bellino and the County asserted, among other things, that the County had taken sufficient preventative steps in respect of sexual harassment so that no material issues of fact existed regarding the County's vicarious liability. The County did not contend that Gaines had failed to prove hostile workplace sexual harassment. Bellino maintained that Gaines' complaint against him individually had to be dismissed because only employers may be directly liable under the LAD, and that if the County is not liable, he could not be held individually liable on an aiding and abetting theory. The trial court agreed, granting the motions for summary judgment and dismissing Gaines' complaint against Bellino and the County.
Gaines appealed only the dismissal of the LAD claims against Bellino and the County, which the Appellate Division affirmed. In its review, the Appellate Division assumed that Gaines had established a claim of hostile workplace harassment under the LAD and that Bellino was Gaines' supervisor. The panel noted that the County had a policy, publicized it through posters, promulgated it through successive editions of employee handbooks, conducted training, and acted when the facts were brought to its attention. It also noted that Bellino was disciplined once the County learned of the alleged harassment. Accordingly, the Appellate Division held that the County was insulated from vicarious liability for Bellino's alleged harassment.
The Supreme Court granted certification.
HELD: There are genuine issues of material fact concerning whether the County of Hudson had implemented an anti-sexual harassment workplace policy that provided realistic preventative and protective measures for employees in the event that harassment occurred and, therefore, whether, based on agency principles, the County may be held vicariously liable for an alleged sexually hostile work environment. Accordingly, summary judgment should not have been granted to the County or Bellino.
1. Principles of agency law control employer liability for compensatory damages in cases of supervisory hostile workplace sexual harassment claims. If a supervisory employee is acting within the scope of his or her employment, an employer will be liable if the supervisor's conduct creates a hostile work environment. If an employer delegates to a supervisor the authority to control the work environment and that supervisor abuses that authority, the employer may be found vicariously liable. Also, an employer may be liable for acting negligently in failing to establish an anti-harassment policy in the workplace. The absence of effective preventative measures would present strong evidence of an employer's negligence. Employers who create and support an active anti-harassment policy should be immunized from vicarious liability for an employee's harassing conduct. (Pp. 16-20)
2. The County's claim to an anti-sexual harassment policy is contradicted by the facts Gaines has placed in issue. Although many high-ranking officials at the correctional facility knew of Bellino's harassment, no action was taken to address Gaines' vulnerable situation. Gaines' refusal to file a formal complaint is insufficient alone to entitle the County to an affirmative defense insulating it from liability for an alleged hostile work environment caused by one of its highest-ranking officers. (Pp. 20-25)
3. Gaines' failure to file a complaint must be addressed in the context of whether the County had been negligent in failing to establish meaningful and effective policies and procedures for employees to use in response to harassment. According to the record presented, the County had little basis for assuming employee confidence in the effectiveness of its anti-harassment policy. The fact-finder must determine whether the County's anti-harassment policy provided effective and practical anti-harassment preventative and protective mechanisms that shield the County from liability for the alleged actions of Bellino, or whether it was and anti-harassment policy that existed in name only. (Pp. 25-27)
4. Genuine issues of fact also exist in respect of whether the County should be vicariously liable for the alleged hostile work environment because Bellino's sexually harassing conduct was aided by his agency relationship with the County. The scope of Bellino's alleged authority is sharply disputed. (Pp. 27-28)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO and ZAZZALI join in JUSTICE LaVECCHIA'S opinion.
The opinion of the court was delivered by: LaVECCHIA, J.
In this case we must consider whether an employer implemented an effective anti-sexual harassment workplace policy such that the employer should be insulated from vicarious liability in a discrimination claim based on hostile work environment. The employer asserted below that although it had an anti-harassment policy and procedure in place, the aggrieved employee never filed a formal complaint. Accordingly, the employer was dismissed from the action on a motion for summary judgment.
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 anti-harassment policy in name only. Because there are genuine factual issues concerning whether this employer had implemented an anti-sexual harassment workplace policy that provided realistic preventative and protective measures for employees in the event that harassment occurred, summary judgment should not have been granted. The factual disputes plaintiff raises, using more than mere assertions about her subjective perception of the workplace policy and complaint mechanisms, are material to the question whether, based on agency principles, the employer may be held vicariously liable for an alleged sexually hostile workplace.
We adhere to the principle that if an employer has exercised due care in acting to prevent a sexually discriminatory hostile work environment, vicarious liability should not attach. The establishment of an effective anti- sexual harassment workplace policy and complaint mechanism evidences an employer's due care and may provide affirmative protection from vicarious liability. However, in this matter plaintiff has put into issue the effectiveness of ...