Defining the Contours of Individual Liability Under the NJLAD for Aiding and Abetting Sexual Harassment

Posted on August 31, 2009 by Robert S. Dowd, Jr.

Under the New Jersey Law Against Discrimination an employee's supervisor may not be held individually liable for sexual harassment of an employee, even if the supervisor is aware of the harassment, unless the supervisor has "aided and abetted" the sexual harassment. A recent New Jersey Federal Court decision provides important guidance regarding the conduct which renders a supervisor individually liable for aiding and abetting sexual harassment in the workplace. In certain circumstances, supervisors will be found individually liable for aiding and abetting the sexual harassment even where they have no direct supervision of the alleged victim of the sexual harassment and are not directly involved in the employer's decision on how to address it. A Court may also find supervisors personally liable if it views their conduct as aiding and abetting their own alleged sexual harassment of the employee. On the other hand, under certain circumstances, supervisors may not be held personally liable even where sexual harassment is rampant within their department, where there is a proliferation of pornographic material in the workplace or where the supervisor was aware of the sexual harassment and failed to take effective action to stop it. For a full analysis of this recent case, click here.

Tags: , , , ,

New Jersey Appellate Division Holds That Employer Can Be Liable For Co-Worker Harassment If Employer Lacks Effective Anti-Harassment Policies

Posted on March 6, 2009 by Michael N. Morea

In Cerdeira v. Martindale-Hubbell, 402 N.J. Super. 486 (App. Div. 2008), decided on September 18, 2008, the Appellate Division held that an employer can be liable for sexual harassment committed by Defendant’s a co-worker, even if the employer did not know that the harassment was occurring. 

It is well established that an employer can be held liable under a negligence theory for the sexual or other harassment committed by a supervisor if the employer does not have an effective anti-harassment policy in place. In Cerdeira, the Appellate Division confirmed that liability under a negligence theory is not limited to harassment committed by supervisors, but also applies to harassment committed by co-workers. Arguably, this is an expansion of an employer’s potential liability under New Jersey law, which had not previously ruled on the issue of employer liability for co-worker harassment.

The Cerdeira decision highlights the importance for employers to implement effective anti-harassment policies and to make employees aware of those policies through publications and training.

Tags: , ,