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Is Your Sexual Harassment Policy Worth the Paper It Is Printed On?

In a post-Harvey Weinstein world, in a time when #MeToo has significantly affected the national discourse and new harassment allegations are leveled against powerful individuals on a near-daily basis, it is more crucial than ever for companies to adopt and maintain compliant anti-(sexual) harassment policies. However, it is not enough to simply have a harassment-free policy on the books or digitally. The policy must be promulgated and implemented effectively. Otherwise, the company risks being found liable for its employees’ inappropriate conduct.

While this issue is probably more important than ever, it is nothing new. In fact, one of the best examples of this mandate is over 15 years old. In today’s troubled world, this case should take on even more significance than ever before.

In Gaines v. Bellino, 173 N.J. 301 (2002), the New Jersey Supreme Court addressed the issue of an organization with an ineffective anti-harassment policy. It overturned the lower courts’ grant of summary judgment dismissing the case against the organization because the company’s anti-harassment policy was “no more than words.”

In Gaines, Maria Gaines, a Corrections Officer at the County Jail in Hudson County, New Jersey, claimed she was sexually harassed by her supervisor, Captain Joseph Bellino, and this constituted a hostile work environment. She alleged a number of incidents over the span of many years. The first incident occurred about a year and a half after Gaines began her employment. While Gaines and Bellino were alone in a room, Bellino allegedly forcibly kissed her and inserted his tongue into her mouth, explaining that he “just wanted a kiss.” A month later, Bellino allegedly blocked Gaines’ path at work and stated he would not force himself on her again, and in fact offered to protect her.

According to the court record, Bellino continued to discuss the incident multiple times over the course of the next few years. For example, in 1995, Bellino allegedly raised the incident in the presence of Gaines and Captain Joseph Flynn, the top ranking officer on the midnight shift. Bellino stated that when he kissed Gaines, her body had “shivered.” He allegedly then said, “[w]hat if I rape you, no one will believe you.” Another official said the same thing later in the conversation. Bellino allegedly then openly contemplated the possibility of him, Captain Flynn, and a third individual who had entered the room raping her.

Gaines complained to the prison leadership multiple times. She allegedly spoke to the prison warden in 1995 and told him she was being moved from post to post because she had an unwelcome “sexual encounter” with Bellino and was being retaliated against for not cooperating. She said she did not want to file a complaint because she was afraid for her safety. The warden had a second conversation with Gaines that same year where he suggested she file a written complaint, but she again refused. The warden then issued standard “cease and desist” letters to Bellino and Flynn which were supposed to be issued following all sexual harassment allegations.

In 1996, the Hudson County Director of Personnel learned of Gaines’ allegations and began an investigation. He spoke to Gaines and individuals whom she said had knowledge of the situation. Gaines wanted Bellino to leave her alone and stop spreading false charges about her, but she still didn’t know if she wanted to file a complaint. The County filed disciplinary charges against Bellino. The hearing officer determined the allegation of the initial kiss was proven but recommended dropping the charges—because there was only one incident with a physical act and Bellino had no prior disciplinary conviction—or, in the alternative, suspending him without pay for thirty days. Bellino was suspended and subsequently retired.

Gaines sued Bellino, Hudson County, and others. She alleged sexual harassment creating a hostile work environment in violation of New Jersey’s Law Against Discrimination (“LAD”). Bellino and the County moved for summary judgment. The County argued it should not be held liable because it had taken sufficient preventative steps. As later summarized by an appellate court, the County “had a policy, publicized it through posters, promulgated it through successive editions of employee handbooks, conducted training, and acted when facts were brought to its attention. Moreover … once the County learned of the alleged harassment, it disciplined Bellino.” The trial court granted summary judgment for the County. This was upheld by the Appellate Division.

The New Jersey Supreme Court reversed. An earlier New Jersey case had laid out factors which could be used to determine whether an employer is vicariously liable for a hostile work environment:

“Those factors included the existence of: (1) formal policies prohibiting harassment in the workplace; (2) complaint structures for employees’ use, both formal and informal in nature; (3) anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization; (4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.”

The Court focused on the third and fourth factors. With respect to the third factor, the Court found that multiple employees of the Jail testified they did not receive any sexual harassment training from the County and that others “tentatively recalled” receiving training but not from the County. In fact, a Sergeant who was told by Gaines about the initial kissing incident, when asked whether he should have reported his conversation with Gaines, stated, “I wasn’t trained, right, I wasn’t trained.”

Regarding the other problematic factor, the Court questioned the effectiveness of the prison’s “sensing or monitoring mechanisms.” Gaines verbally informed numerous people of the harassment, but this “failed to result in any remedying of plaintiff’s vulnerability to Bellino, whom she feared,” the Court wrote. In fact, the Court noted that the reactions of the individuals who were informed of the incident “fail[ed] to support any workplace confidence in the existence of a meaningful anti-sexual harassment policy.” In one incident, a captain to whom Bellino described the kissing incident covered his ears as though he did not want to hear about it. An officer testified that if Gaines had made a formal complaint, she would not have been believed. The Court also looked at the fact that, when Bellino made the rape comments in 1995, one of the others in the room stated to Gaines, ostensibly in a joking manner, that “no one would believe [her].”

Even Gaines’ failure to file a formal complaint, in the Court’s view, could be explained by the lack of confidence in the sexual harassment policy. In fact, the Court pointed out the Warden’s testimony that “supervisors generally, and Bellino notoriously, had violated numerous County policies in the past.” The Court concluded, “the County had little basis for assuming employee confidence in the steadfastness of its anti-harassment policy.” Separate and apart from a formal complaint, the Court found, “Although Bellino’s harassment was known to many high-ranking officials at the corrections facility … because of plaintiff’s informal complaints about Bellino’s behavior, no apparent action was taken to address those complaints.” Taken together, the Court decided Gaines had satisfied the threshold to defeat summary judgment (which requires a plaintiff to receive all reasonable inferences in her favor).

Regardless of jurisdiction, this case should serve as a lesson to all employers—simply adopting a sexual harassment policy is NOT enough! It must be “more than the mere words encapsulated in the policy,” as the New Jersey Supreme Court put it. Employers should learn from this case and ensure their policies are fully implemented and effective. Below are tips which will help maximize the effectiveness of anti-harassment policies:

1. Ensure the existence of an anti-harassment policy. It should be reviewed by employment counsel to ensure it is appropriate for your industry and legally sufficient;

2. Publicize the policy in a manner calculated to ensure all employees are aware of it. It may not be enough to simply include it in employee manuals/handbooks. In Gaines, multiple editions of the Jail’s Employee Handbook included the sexual harassment policy, but this was deemed insufficient by the Court. Employers should consider hanging the policy in an employee break room, discussing it during orientation and at yearly state of the company addresses, and/or emailing it to employees;

3. Ensure effective training of managers and employees. Managers should understand what to do and say when employees approach them with complaints or issues and should be trained to recognize the various forms a complaint may take. They should also be taught how to properly investigate complaints or how to refer the complaint to someone who will do the investigation;

4. Employees should be made aware of the various reporting mechanisms by which they can report inappropriate conduct;

5. Both employees and managers should be taught what behavior and language is and is not appropriate in the workplace;

6. Ensure no one undermines the effectiveness of the anti-harassment and other policies. If employees believe no one will take a complaint seriously, the policy is automatically not effective. One of the most disturbing revelations in Gaines was the fact that multiple individuals told Gaines no one would believe her. Equally damning, the Court noted that various policies at the jail were loosely enforced and referred to the testimony of one officer who stated, “[T]he whole policy and procedure book is not enforced on everyone.” The Court ultimately saw this as justifying Gaines’ view that it was futile to file a formal complaint (“Plaintiff’s failure to file a formal complaint must be considered in the context of whether the County had been negligent in combating the creation of a sexually discriminatory hostile work environment by failing to establish meaningful and effective policies and procedures for employees to use in response to harassment.”);

7. Regularly review your policies to ensure they are up-to-date with the changing legal landscape. Employment laws change all the time, and these days sexual harassment laws in particular are under the microscope. It is also possible for very different laws to change the landscape in unexpected ways. For instance, one of the provisions in the recently-enacted tax law voided the deductibility of sexual harassment settlements which include a non-disclosure provision. Another bill recently introduced in the Senate would prohibit employers from including sexual harassment or gender discrimination claims in their arbitration agreements. It is important for competent employment counsel to review your policies or even conduct an HR audit to ensure there are no issues.

Originally Published In Bloomberg Law Big Law Business, June 21, 2018

Reproduced with permission from Copyright 2018 The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com