DEVELOPING ISSUES OF WORKPLACE-HARASSMENT LIABILITY

By John K. Bennett

© November 20, 2000 New Jersey Lawyer

Workplace-harassment law continues to evolve as courts wrestle with still-unsettled issues of employer and individual liability under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-12. The Model Civil Jury Charges for hostile-environment harassment, approved a year ago, reveal two of the most unsettled issues. First, there is the issue of employer liability for alleged harassment by a non-supervisory co-employee of the plaintiff. Second is the issue of the individual liability of the alleged harasser or a higher-level employee who knew of but failed to respond adequately to the alleged harassment. These model charges, based extensively on the Supreme Court of New Jersey's decision in Lehmann v. Toys R Us, 132 N.J. 587 (1993), presently lack sufficient guidance as to these two issues, mainly because Lehmann itself did not address them.

As to the issue of employer liability for alleged harassment by a non-supervisory employee, the model charge's "Note to Judge" states that "some modifications" to the standard charge will be required where the alleged harasser is a non-supervisory co-employee. That note refers the charging Judge to footnote 34 to Charge 2.22-16, which, as to employer liability for alleged harassment by a non-supervisory employee, states:

The model charges do not attempt to address at all the issue of individual liability for alleged harassment under the LAD. The charges' "Note to Judge" states:

This article will discuss court decisions rendered in the past year, since the November 1999 approval of the model hostile-environment harassment charges, that may provide some further guidance on these emerging issues of employer and individual liability.

Chief among these recent court decisions is the per curiam opinion of an Appellate Division panel (Judges D'Annunzio, Newman and Fall) in Wheeler v. Cherry Hill Fire District No. 13, et al., ___N.J. Super.___, No. A-1232-98T5 (May 18, 2000). This opinion is particularly noteworthy because it deals extensively with both of the unsettled issues being discussed here, that of employer liability for alleged harassment by non-supervisory co-employees, as well as the individual liability of supervisory personnel and non-supervisory co-employees under the LAD.

In Wheeler, a paid volunteer firefighter in Cherry Hill complained that three non-supervisory co-employees (individual defendants Krohn, Stepp and Collins) engaged in certain incidents of unwanted touchings and sexual comments in the workplace. The Fire District and its Chief and Deputy Chief (individual defendants Ulshafer and Saraceni) investigated those complaints and took some remedial actions, including issuing a harassment policy and a supervisory training program, transferring the plaintiff to another station, and imposing disciplinary suspensions on the three co-employees, Krohn, Stepp and Collins. Thereafter, however, plaintiff claimed she was retaliated against, including in her work and shift assignments, her reclassification and being transferred to a different station so as to deprive her of a more desirable position for which she would have been in line.

Plaintiff filed suit, claiming unlawful sexual harassment under the LAD against the Fire District (the employer), Ulshafer and Saraceni (the supervisors) and Krohn, Stepp and Collins (the non-supervisory alleged harassers). All of the defendants were granted summary judgment, on different grounds. The individual non-supervisors who were accused of the alleged harassment were dismissed under Tyson v. Cigna Corp., 918 F. Supp. 836, 839-41 (D.N.J. 1996), aff'd, 149 F.3d 1165 (3d Cir. 1998), holding there is no individual liability under the LAD against non-supervisory co-employees. The two supervisors also were dismissed under Tyson, based on the motion judge's determination that their mere inaction, passivity or acquiescence concerning the alleged harassment by the three co-employees did not rise to the level of "aiding and abetting" under N.J.S.A. 10:5-12(e). The Fire District was dismissed based on the motion judge's determination that it acted properly upon becoming aware of the plaintiff's harassment complaints.

On plaintiff's appeal, the Appellate Division panel in Wheeler dealt with all of these LAD liability issues in painstaking legal analysis. As to employer liability, the panel held the Fire District should remain in the case based on all three theories of employer liability: (1) there were disputed questions of fact for a jury as to whether the Fire District's response to plaintiff's complaints were effective and adequate; (2) the supervisory personnel who were given the authority to control the plaintiff's work environment may have helped create the alleged hostile environment by their actions following her complaints; and (3) the Fire District may have been negligent by failing to have an anti-harassment policy in place at the time of the alleged harassing conduct.

As to the individual liability of the two supervisors who allegedly failed to respond adequately to plaintiff's complaints of harassing conduct by the three non-supervisory co-employees, the Appellate Division followed the analogous federal court decisions. The panel ruled it was in accord with the Third Circuit's decisions in Hurley and Tyson that individual liability against supervisory employees does not lie under N.J.S.A. 10:5-12(a), because that section expressly prohibits harassment by "an employer." The appellate panel recognized that, as a matter of "the plain language" of section 12(a), plaintiff's "employer" was the Fire District, and not her supervisors, who were also employees of the Fire District.

But, the appellate panel ruled that the supervisory defendants could be held individually liable as "aiders and abetters" under N.J.S.A. 10:5-12(e). That LAD section provides it shall be unlawful "for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doling of any of the acts forbidden under this act." The appellate panel followed the Third Circuit's decision in Hurley and Failla v. Passaic, 146 F.3d 149, 158 (3d Cir. 1998), defining "aiding and abetting" liability under LAD section 12(e) by looking to the Restatement (Second) of Torts, ¤ 876(b), and determining that an employee "aids and abets" a LAD violation when he knows the employer's conduct was a breach of its duty to provide a harassment-free workplace but nonetheless gives substantial assistance or encouragement to that harassing conduct.

In so holding, the Wheeler panel parted company with Tyson, and adhered to Failla and Hurley, that in certain circumstances a supervisor's inaction in response to workplace harassment can form the basis for his individual liability under section 12(e) for "aiding and abetting" that harassment. The panel held that individual liability for "aiding and abetting" can be based on a supervisor's inaction if he is found to have known that his failure to respond differently to plaintiff's harassment complaints breached the employer's duty to maintain a non-hostile work environment, and his inaction rose to the level of providing "substantial assistance or encouragement" to maintaining a hostile work environment for the plaintiff, citing Failla, 146 F.3d at 158, and Hurley, 174 F.3d at 126. The panel concluded that because of the competing characterizations of the evidence, there were jury questions both as to the "scienter" element of these supervisors' potential liability for "aiding and abetting" and as to whether their actual conduct in response to plaintiff's complaints could be viewed as "substantially assisting or encouraging" the Fire District's allegedly hostile work environment for the plaintiff. Thus, summary judgment for the two supervisors was reversed, allowing plaintiff to proceed against them individually for "aiding and abetting" under LAD Section 12(e).

The Wheeler panel affirmed summary judgment for the non-supervisory co-employees, however, agreeing there is no individual liability of non-supervisors under LAD Section 12(e). Following Tyson, 918 F. Supp. at 839-41, aff'd, 149 F.3d at 1165, the appellate panel ruled that non-supervisory employees cannot be held individually liable as "aiders or abetters" under N.J.S.A. 10:5-12(e) of the LAD.

In Newsome v. Administrative Office of the Courts ("AOC"), ___ F. Supp. 2d ___, Civil Action No. 97-3213 (JAG)(D.N.J., July 5, 2000), U.S. District Judge Greenaway dealt with some of these same individual liability issues under the LAD. Plaintiff claimed she was sexually harassed by her supervisor, defendant Coleman, in violation of Title VII and the LAD, and that AOC managers Hill and Battle failed to prevent Coleman's alleged harassing conduct and failed to act upon it once they knew of it. Judge Greenaway granted defendant Coleman's summary judgment motion under the LAD, finding there is no direct individual liability under Section 12(a) of the statute, and that Coleman, as the alleged harasser, cannot "aid and abet" his own conduct under Section 12(e), citing Hurley, 174 F.3d at 126, and Failla, 146 F.3d at 158.

Summary judgment also was granted for defendants Hill and Battle. Judge Greenaway rejected plaintiff's argument that these AOC managers "aided and abetted" the alleged harassing conduct by failing to prevent it and failing to act upon it once they knew of it. The Court noted "that the failure to prevent harassment does not rise to the level of "substantial assistance or encouragement" of it under Failla, 146 F.3d at 158, utilizing Restatement (Second of Torts), ¤ 876(b). The Court further held that, based on the record evidence, no reasonable jury could conclude that defendants Hill or Battle could be individually liable as "aiders or abetters" under Section 12(e) based on any alleged failure to act in response to plaintiff's complaints, because they did not give any "substantial assistance or encouragement" to defendant Coleman's alleged harassing conduct, citing Hurley, 174 F.3d at 127.

Thus, some emerging legal principles may be plugged into the relevant jury charges. As noted in the present model charges, an employer can be held liable for harassment by a non-supervisory co-worker of the plaintiff's only if the employer knew or should have known of the alleged harassment and failed to respond effectively or adequately. See also Blakey v. Continental Airlines, Inc., 164 N.J. 38, 62 (2000)(relying on Lehmann, reiterated that "employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace.")

As for individual liability, neither supervisory nor non-supervisory employees may be held individually liable as "an employer" under Section 12(a) of the LAD, because individual employees are not the plaintiff's employer.

Supervisory employees may be held individually liable under Section 12(e) of the LAD as "aiders or abetters" of workplace harassment where they knowingly have given substantial assistance or encouragement to unlawful harassment. A jury must be instructed that an individual supervisor or manager can be held liable for "aiding or abetting" unlawful harassment only if he knew the harassing conduct breached the employer's duty to provide a non-hostile work environment, and he nonetheless engaged in action or inaction that provided "substantial assistance or encouragement" to that harassing conduct, as that term is defined in Restatement (Second) of Torts, ¤ 876(b).

Non-supervisory co-employees cannot be held individually liable as "aiders or abetters" under Section 12(e) of the LAD. This is so even where the non-supervisory co-employee is the alleged harasser, as he cannot "aid and abet" his own conduct.

These and other related emerging issues will develop further as trial courts continue to apply them to cases before them, both on dispositive motions and at trial. Eventually one of those cases will be reviewed by the Supreme Court of New Jersey, which likely will agree with the analysis of the Third Circuit in Hurley, Failla and other federal court decisions.