In a recently decided federal case (Tinoco v. Thesis Painting, Inc.), the United States District Court, for the Southern District of Maryland held that a company’s anti-discrimination policy, was “defective or dysfunctional” because it was provided to employees only in English.
In this case, a female employee claimed that she had been sexually harassed by her male coworker. The company attempted to avoid liability using the Faragher/Ellerth affirmative defense. Under this defense, an employer may avoid liability for co-worker harassment if the employer exercises reasonable care to prevent and correct promptly any harassing behavior, among other things. “Exercising care” can be demonstrated by implementing and distributing an effective harassment policy.
Here, the Court found that the company’s anti-discrimination policy was ineffective because it was only distributed to employees in English. The alleged harasser only spoke Spanish and did not understand any English. Therefore, he was unable to read or understand the policy. Continue reading NEW CASE: Harassment Policies Should be Provided In Multiple Languages
Earlier this year, New York City enacted new laws requiring NYC employers to educate their employees about workplace harassment and sexual harassment.
Under the new law, the NYC Commission on Human Rights is required to provide employers with certain tools to help NYC employers comply with the new law. These tools include:
- Creating a workplace poster addressing the new law (in both English and Spanish)
- Develop a model anti-harassment policy
- Develop a model standard complaint form
- Develop a model anti-harassment training program.
The NYC Commission on Human Rights recently published the English version of the new workplace poster (the Spanish version is still forthcoming). Starting September 6, 2018, all NYC employers are required to display this poster (and the Spanish version) in a prominent location in the workplace.
We recommend that employers post this poster as soon as possible.
In addition to the poster, the NYC Commission on Human Rights has also released a “Stop Sexual Harassment Act Factsheet”. This factsheet is intended to help employers meet the requirement of providing all employees (and new hires) with notice of the anti-harassment law. Employers may either distribute this factsheet to all existing employees and new hires and/or they can incorporate the information in the factsheet into an anti-harassment policy in the employee handbook or a free-standing policy.
We recommend that employers provide this factsheet to all current employees and new hires. Continue reading NEW POSTER: NYC Publishes New Sexual Harassment Poster
While not required under New Jersey or federal law, in its denial of Petition for Certification in Dunkley v. S. Coraluzzo Petroleum Transporters, the New Jersey Supreme Court has reemphasized the importance of sexual harassment training – specifically in the context of establishing an affirmative defense against a sexual harassment claim.
Specifically, the New Jersey Supreme Court clarified that an employer can only use existence of a sexual harassment policy and its practice of conducting anti-harassment training as an affirmative defense if the policy and/or training practice was in place before the alleged discriminatory conduct occurred. Employers who put those policies/practices in place after discriminatory conduct occurs cannot use those policies/practices as an affirmative defense in a lawsuit relating to that discriminatory conduct.
This clarification aligns with the New Jersey Supreme Court’s holding in its 2015 decision in Aguas v. State, where the Court held that an employer has an affirmative defense in a harassment lawsuit where:
- The employer exercised reasonable care to prevent and to correct promptly sexually harassing behavior; and
- The plaintiff-employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer or to otherwise avoid harm.
In this recent denial of Petition for Certification, New Jersey Supreme Court pointed out that an employer can only meet the standard of exercising reasonable care to prevent sexually harassing behavior by having anti-harassment policies and procedures intended to prevent discrimination in place before the alleged discriminatory conduct occurs.
What does this mean for New Jersey employers?
Based on this ruling, it is strongly recommended that all New Jersey employers take steps to implement a strong anti-harassment policy and insure that these policies remain up-to-date. In addition, New Jersey employers should conduct anti-harassment training of all employees on an annual basis.