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Business Alert: Is It Negligent for a Business in NJ Not to Have an Effective Sexual Harassment Policy?

Posted by Frank Steinberg | Oct 03, 2008 | 0 Comments

A hat tip to Professor Mitchell Rubenstein at the Adjunct Law Prof Blog, who twice this week has blogged on important recent court decisions in our backyard, first from the 3rd Circuit, and now from the NJ Appellate Division.

The case is Cerdeira v. Martindale-Hubbell.  We'll be paying more attention to this over the next week.  For now, here's our initial impression.

The case involves four significant factors.  First, it involves harassment by a co-worker rather than a supervisor.  Second, the defendant had a "Code of Conduct" that spoke generally about the impropriety of harassing conduct but went no further.  Third, the defendant claimed that memos about harassment were circulated in the past, but plaintiff said that she did not receive them and defendant could not prove otherwise.  And fourth, plaintiff delayed for two years before reporting the harassing conduct to management.

The trial court threw out plaintiff's complaint, but the Appellate Division reversed.  Significantly, the App. Div. confirmed that plaintiff may have a valid claim based upon the notion that Martindale-Hubbell (ironic aside: a publisher of legal directories) was negligent in failing to provide its employees with a protective mechanism through an "effective" sexual harassment policy.  Although it did not decide the issue directly, it seems clear that the "Code of Conduct" did not cut it.  The case now returns to the trial court.

Employers, there's a message for you in this decision.  If you don't have an effective sexual harassment policy, you need to get one.  Now.  

What's an "effective" policy?  That's a subject for another post.  For the moment, as with most things related to employment law in NJ, we offer this advice: don't try to create a policy by yourself.  Find a NJ lawyer who knows employment law and get some help.  There's simply too much at stake for your business to run the risk of a homemade job.  And canned forms are dangerous because a good policy needs to fit the requirements of your particular business as much as it needs to fit the law.

One final caution: don't think that because you have just a few employees that you don't need this protection.  Even if you're too small to be covered by the federal anti-discrimination laws, you are subject to the New Jersey Law Against Discrimination [LAD]. 

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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