When an anti-harassment policy won’t defeat a bias claim…

What happens when an employee claims to be a victim of discrimination or sexual harassment in the workplace, but fails to report the harassment to her employer? If the employer has a written anti-harassment policy, it should be able to satisfy its burden that the employee unreasonably failed to take advantage of the opportunity to avoid harm.

Maybe not. 

Employers will want to continue reading after the jump to make sure that they are taking appropriate steps to avoid bias and sexual harassment claims

A handbook alone may not be enough.

I recently came across this case, Winchester v. Nationwide Mutual Insurance Company, decided last month in the United States District Court for the Northern District of Texas. The court in Winchester allowed the plaintiff to present her sexual harassment claims to a jury because Nationwide failed to demonstrate at summary judgment that it had exercised reasonable care to prevent and correct promptly alleged sexually harassing behavior in the workplace, even though it had a written sexual harassment policy.

How could that be? 

The court found no evidence that Nationwide: (1) took specific actions to make its employees aware of its sexual harassment policy, (2) reviewed the policies with its employees and supervisors, or (3) trained its employees on the policies. Without such evidence, the court held Nationwide did not prove that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior.

So be careful, especially in New Jersey.

In most jurisdictions, if an employer has a well-written anti-harassment policy contained in its employee handbook, and the employer provides that handbook to its employees, the employer has discharged its obligation to provide its employees with the tools to report claims of unlawful harassment. Consequently, the employer can investigate such claims and fashion remedies that are reasonably designed to end the unlawful harassment.

In New Jersey, however, a policy alone may not be enough. In Lehman v. Toys R Us, Inc., the New Jersey Supreme Court opined that “common sense suggests that sexual harassment at the workplace is foreseeable, event where anti-harassment policies exist.” Because sexual harassment may occur in the workplace, even with an employer policy, the court found that an employes must take five steps to avoid claims of sexual harassment:

Employers that effectively and sincerely put five elements into place are successful at surfacing sexual harassment complaints early, before they escalate. The five elements are: policies, complaint structures, and that includes both formal and informal structures; training, which has to be mandatory for supervisors and managers and needs to be offered for all members of the organization; some effective sensing or monitoring mechanisms, to find out if the policies and complaint structures are trusted; and then, finally, an unequivocal commitment from the top that is not just in words but backed up by consistent practice.”

So, at a minimum, NJ employers MUST train their supervisors and managers how to avoid, identify and address claims of unlawful harassment. This training also needs to be offered to all employees. Only when this, and the other steps identified above, are completed, can a NJ employer better insulate itself from unlawful harassment claims.

Other employers should take note.

Even though this may not be the law of the land, employers in other jurisdictions should take a page out of the NJ playbook and couple a policy with anti-harassment training. Not only will doing so create a better defense in court, but it could also nip an internal complaint in the bud before it becomes a lawsuit.