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It is established New Jersey Employment law that an employer is responsible for sexual harassment when the harasser is a supervisor or when the harasser is a co-worker and the employer failed to investigate and fix the sexual harassment. But a trial judge in New Jersey “misconstrued pertinent case law” on sexual harassment, so the Appellate Division reversed the judge’s dismissal of the case and sent it back for trial. See Wallace v. Mercer County Youth Det. Ctr. (9/14/11, NJ.App.Div.). The Appellate Division found that Mercer County failed to properly train its staff to enforce its sexual harassment policy and, as a result, the investigation of the sexual harassment was shoddy. For example, the County investigator refused to find the complaints of sexual harassment valid because “no witnesses were present at the time of the alleged incident.” But the Appellate Division countered that, “The fact that the harassment occurred when no one else was present, however, is not unusual.” Moreover, the County’s sexual harassment policy promised that supervisors would “immediately” inform the Affirmative Action Officer of any sexual harassment complaint, but the County waited eleven days to do so. Finally, the Appellate Division found that the County’s “lack of any discernable criteria” to be used in evaluating whether sexual harassment occurred also warranted sending the case to trial.
This case underscores the too-common occurrence that employers fail to train their employees in NJ sexual harassment policies and that the lack of witnesses should not render a complaint as unsubstantiated.
October 13, 2011 – Paul Castronovo – Castronovo & McKinney, LLC