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A SAFE HARBOR FOR EMPLOYMENT CLAIMS: Employment Policies Offer Protection

By Thomas B. Lewis

When discrimination occurs in the workplace, the aggrieved employee should bring the inappropriate behavior to the attention of the employer, who, ideally, would then investigate the allegation and take prompt, appropriate remedial action.  What happens, though, when, after an employer conducts an investigation and then reprimands or terminates the offending employee, the aggrieved employee continues to pursue legal action against his or her employer?  Can the employer still be held liable even though the employer took prompt, remedial action?

 

Most courts – at both the state and federal level in New York, New Jersey, and Pennsylvania – hold that employers may often times avert legal exposure, thus creating a safe harbor, if an objective investigation was conducted and prompt, remedial action occurred.  For example, the Appellate Division of the New Jersey Superior Court, in Barnes v. the State of New Jersey reaffirmed the general rule that when employers have in place policies aimed to address workplace discrimination and take remedial action in response to a complaint of discrimination, the employer may have protections from vicarious liability for the discriminatory actions of its employees. 

 

The Appellate Division in Barnes stressed that the State promptly engaged in an investigation of the charges and ultimately disciplined the offending employee.  Then, citing the New Jersey Supreme Court's decision in Cavuoti v. New Jersey Transit Corp., the Appellate Division stated that:
 

A company that develops policies reflecting a lack of tolerance for harassment will have less concern about hostile work environment or punitive damages claims if its good-faith attempts include periodic publication to workers of the employer's anti-harassment policy; an effective and practical grievance process; and training sessions for workers, supervisors, and managers about how to recognize and eradicate unlawful harassment.

 

Again citing the Cavuoti decision, the Appellate Division held that 'a form of safe haven [exists] for employers who promulgate and support an active[] anti-harassment policy.'  These conclusions are not at all unique – both the United States Court of Appeals for the Second Circuit and the United States Court of Appeals for the Third Circuit follow this line of reasoning, as exhibited in cases such as Curtis v. Citibank, N.A and Andreoli v. Gates. 

 

From the standpoint of employers who work to implement aggressive anti-harassment policies, and who take prompt objective action in response to complaints of workplace discrimination, the safe harbor protections make sense.  Employers who make a concerted effort to eliminate discrimination and harassment in the workplace should not be punished for their efforts, particularly when prompt, remedial action is taken by the employer and the inappropriate behavior ceases. 

In conclusion, should an employer wish to ensure minimal liability from discrimination claims, the employer should follow the procedure described by the New Jersey Supreme Court in Cavuoti, as reinforced by the Appellate Division in Barnes, and in line with case law from most other jurisdictions, including New York and Pennsylvania:

1. an employer should have in place well-publicized anti-discrimination and anti-harassment policies;
2. an employer should implement grievance procedures in order to address claims of discrimination made against its employees;
3. when an employee utilizes the grievance procedures, the employer should conduct a full and thorough investigation; and
4. if an employer determines that an employee has violated the law or the company's anti-discrimination or anti-harassment policies, the employer should take prompt, appropriate remedial action.  Following the above guidelines, a safe harbor may exist for the employer.

Full post as published by New Jersey Law Blog on November 10, 2010 (boomark / email).