On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3291-00.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Cuff, Weissbard and Hoens.
When J.M.L. was fourteen, she was employed as an instructor at a karate studio. J.M.L. and A.M.P., her forty-one year old employer, commenced an almost year long affair. Following A.M.P.'s indictment and conviction of second degree sexual assault, contrary to N.J.S.A. 2C:14-2c(2), J.M.L., through her guardian ad litem, filed a complaint under the Law Against Discrimination (LAD)*fn1 against her employer and the franchisor of the karate studio. She claimed that she was the victim of sexual harassment. Summary judgment was granted in favor of the corporate defendants on the basis that A.M.P.'s advances were welcomed by J.M.L. Plaintiff appeals. Due to the settlement of all claims between J.M.L. and her employer, we consider only the order granting summary judgment in favor of the franchisor. We affirm, albeit for reasons different from those advanced by the motion judge.
A.M.P. and his wife, L.P., owned a karate studio in Burlington County. It operated under a corporate name, S., Inc. The studio was a franchise of A., Inc. D.T. is the owner of A., Inc. J.M.L. had been a student at A.M.P.'s studio since she was ten years old. In June 1999, J.M.L. began working at the studio as an instructor for the younger children. In July 1999, J.M.L. and A.M.P. started a sexual relationship that lasted for seven months. A.M.P. was forty-one years old; J.M.L. was fourteen. The sexual encounters occurred in the studio and outside the studio.
In February 2000, J.M.L. ceased her part-time employment at the studio at her mother's insistence. In March 2000, A.M.P. was indicted and subsequently pled guilty to one count of sexual assault.
On November 22, 2000, J.M.L. and her parents filed a complaint against A.M.P. and his wife, L.P. individually and as owners of the karate studio in which J.M.L. was employed. The complaint alleged that J.M.L. was the victim of sexual harassment in violation of the LAD. The complaint was amended four times. The first amended complaint asserted a claim against S., Inc., the corporate entity that operated the studio. The second amended complaint alleged negligence against L.P. The third amended complaint alleged that A.M.P. and L.P. violated N.J.S.A. 2A:61B-1 (statutory civil action for sexual abuse). The fourth amended complaint alleged that A., Inc. and D.T., the franchisor of the karate studio, violated the LAD. A default judgment was entered against A.M.P. on March 19, 2004. A settlement was reached with L.P.
J.M.L. filed a motion to bar "welcomeness" as an affirmative defense against the LAD claims and to preclude any evidence at trial that A.M.P.'s advances were welcome. S., Inc. filed a cross-motion for summary judgment on Count II (sexual harassment). After oral argument on the motion, but before a decision had been delivered, A., Inc. and D.T. filed a motion for summary judgment on the LAD claims. After another round of oral arguments, the motions for summary judgment were granted and the complaint was dismissed against both corporate defendants and D.T. Prior to oral argument of this appeal, S., Inc. reached a settlement with J.M.L.
In her oral opinion, the motion judge held that in order to establish a claim of sexual harassment, a plaintiff must demonstrate that the actions of a co-employee or employer must have a negative effect on her, such as dismissal or an unwanted or undesired alteration of the terms and conditions of employment. She also held that a co-employee or employer may defend a claim of sexual harassment with proof that the behavior was welcome. Finding no exception to these principles when the victim is a minor, the motion judge granted the corporate defendants' motions for summary judgment and implicitly denied plaintiff's motion to bar the affirmative defense of welcomeness. The motion judge did not address A., Inc.'s alternative basis for summary judgment, that as a franchisor of the karate studio, it cannot be liable under the LAD as plaintiff's employer.
We commence our review with a brief overview of the nature of a sexual harassment claim under the LAD. In Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 601 (1993), the Court recognized two forms of sexual harassment. While quid pro quo harassment conditions employment on submission to sexual demands, "[h]ostile work environment sexual harassment . . . occurs when an employer . . . harass[es] an employee because of his or her sex to the point at which the working environment becomes hostile." Ibid.
The Court identified the following elements necessary to make out a prima facie case of hostile work environment sexual discrimination under the LAD: "(1) [the conduct] would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Id. at 603-04. The unique problem in this case is whether J.M.L.'s failure to complain of A.M.P.'s sexual advances and her profession of affection for A.M.P. bars her sexual harassment claim. Neither the LAD nor case law addresses this issue in the context of a victim who is a minor. Various cases recognize that a consensual sexual relationship between employees negates ...