Every morning, a young, front-office employee in a South Jersey manufacturing facility would huddle with his buddies in his cubicle and tell them off-color jokes from a “dirty joke a day” book he had received as a gift. When a female co-worker — whose cube was in earshot — asked him to stop, noting that the ribald humor made her uncomfortable, the male replied, “It’s just a joke. Besides, I wasn’t talking to you.”
But that kind of excuse doesn’t cut it in the age of the #MeToo movement, said Patrick Collins, a member of Norris McLaughlin PA and co-chair of the firm’s Labor & Employment Group. “If a person is within earshot or otherwise feels affected by a conversation or pictures, it becomes a hostile work environment,” he said. “Claiming that ‘it’s just a joke’ is not a defense.”
Put it in writing
Companies need formal policies that address harassment in the workplace and outline the rights and obligations of all staff and supervisors. A good policy will be written — though it may be distributed in electronic format — and enforced, according to lawyers. It will define what’s considered unacceptable behavior, including bullying, rudeness, and unprofessional conduct, and employees should sign or electronically acknowledge that they’ve received a copy of the policy.
A policy should also describe multi-channel complaint procedures so employees know how to report any harassment, Collins said. “You can’t limit the reporting channels to just a manager, because what if a person’s manager is the problem?”
Employees should be advised that an investigation, if warranted, will be prompt and thorough, “although confidentiality cannot be guaranteed,” Collins added. “An employee who alleges harassment should also be notified that there will be no retaliation, so people will be comfortable about coming forward.”
Training programs should use real-world examples, said Kelly Ann Bird, leader of the Gibbons Workplace Training Academy and a director in the law firm’s Employment & Labor Law Department. They shouldn’t be limited to the “’ripped from the headlines’ stories we have all been watching, but nuanced examples of human interaction in human workplaces,” she said. “For example, those conducting training should open up a discussion about hugging, holiday gifts, and uncomfortable ‘bystander’ moments, and emphasize the responsibility we all have in our work environment.”
Managers, supervisors, and executives should be trained in separate sessions, “with a focus on their ability to influence culture and compliance, as well as their responsibility and accountability,” Bird added.
The driver claimed his manager at BS Transpor-tation promised to “make a report” and “take care of it,” but never told the fuel distribution company about the alleged behavior or investigated it. The driver further claims his man-ager asked him to stay quiet about the allegations — and fired the driver when he brought them up again.
“U.S. District Judge Jan E. DuBois issued a ruling allowing Hewitt’s case against BS Transportation to proceed,” noted Thomas C. Regan, a member of LeClairRyan who serves as the law firm’s Litigation Department leader. He wrote about the case for Corporate Compliance Insights, a legal publication. The judge noted that other district courts in the 3rd Circuit, which includes New Jersey, “have ruled that an employer may be held liable ‘where the employer (or its agents or super-visory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action,’” according to Regan. “Business owners in a broad array of sectors — especially retail and the hospitality industry — need to be aware of the potential risks they may face with respect to sexual harassment of their employees by non-employees,” including customers, vendors, business partners or even government inspectors or other personnel.
Size doesn’t matter
And the size of a business doesn’t matter, she cautioned. “Smaller companies with smaller budgets should consider that the cost of using an outside trainer or attorney to conduct training is typically not exorbitant and will, moreover, far outweigh the cost of defending even one litigation.”
New Jersey employers have to be particularly vigilant, because they’re generally bound by the state Law Against Discrimination, “which is one of the broadest anti-discrimination laws in the country,” said Tom Doherty, a McCarter & English LLP partner who focuses on employment litigation and counseling on behalf of management. “The LAD goes further than federal law in setting forth legally protected characteristics by, among other things, expressly prohibiting discrimination based on sexual orientation, gender identity and gender expression.”
Besides preventing harassment based upon sex, New Jersey’s LAD statute adds a laundry list of conditions that employers have to consider, he said, including harassment or discrimination “based on race, creed, color, national origin, age, ancestry, nationality, marital or domestic partnership or civil union status, pregnancy, gender identity or expression, disability, liability for military service, affectional or sexual orientation, atypical cellular or blood trait, and genetic information.”
Hire professional counsel
In addition, it’s not a good idea to develop a policy based on the law you learned from reading John Grisham novels. “Having a New Jersey lawyer prepare an anti-harassment policy is a worthwhile investment,” cautioned Doherty. “Besides the obvious concern about preventing legal liability, distributing an effective written policy tells your workforce that this is something that is important at the highest levels of the company. In other words, it sets a tone that harassment won’t be tolerated.”
When appropriate policies are in place employees are properly trained, “Our experience is that when employees are trained they have better appreciation of the importance of engaging in conduct that comports with the law,” noted Karol Corbin Walker, a LeClairRyan member who focuses her practice on employment, business and other matters.
She warned that an employee who tells off-color jokes or engages in other offensive verbal conduct shouldn’t expect to be protected by their First Amendment rights. “If you’re outside the office, then your own your own time,” she said. “When you’re in an employer’s premises you must conform your conduct to ensure that the environment is free of harassment.”
Talk may be cheap, but the consequences of offensive talk or activity can be expensive.