Investigating Sexual Harassment in the NJ Workplace

Employers in New Jersey have a responsibility to both establish preventive measures against sexual harassment and other forms of workplace misconduct and to take remedial measures when harassment is reported.[1] An employer has a responsibility to adequately investigate allegations of sexual harassment—especially if it wants to claim that it should avoid vicarious liability because it had created and enforced an effective policy against sexual harassment.[2]

Neither case law nor New Jersey statute sets forth exactly what constitutes a conscientious, legally adequate investigation. While every investigation is different, existing case law establishes a few fundamental principles.

1. Timing Is Everything

Acting promptly in response to a complaint is an essential part of an effective investigation.[3] Unfortunately, there are no established bright-line rules regarding what is an acceptable amount of time. Thus, an investigation should be commenced as soon as possible after a complaint is made, either internally or using third-party independent counsel.

A good start is to gather documentary information, including a copy of any written complaint, the organization’s anti-harassment policy (if it has one), and relevant portions of the personnel files/company records of the complainant and the alleged harasser. Then, the investigator should conduct interviews with the complainant, the alleged harasser, and any other individuals who may have knowledge of the facts surrounding the allegations.

2. Effective, Strategic Interviewing

The EEOC has issued a guidance to help employers conduct effective investigations by formulating suggested interview questions.[4] The investigator should ask the complainant to provide as much detail as possible about the incident or incidents, asking open-ended questions, allowing the complainant the necessary time to provide detail, and asking follow-ups in order to elicit details the complainant may not realize are relevant. It can also be helpful to re-interview the complainant at the end of the investigation, which allows the investigator to ask any follow-up questions or address other issues that may have arisen during the course of the investigation. 

When interviewing the person accused of harassment, an investigator should inform them of the factual allegations of the complaint and record their responses. The accused should be also asked whether they know of any other people who may possess relevant evidence as well as any documentation or information that may help disprove an allegation.

3. Documentation & Preservation of Evidence 

Recording statements on audio or videotape can help preserve an accurate record and protect the credibility of the investigation. In New Jersey, it is legally permissible to record a conversation so long as one party to the conversation consents.[5] The investigator should preserve these recordings with copies of the documents related to the complaint and investigation.

4. Confidentiality vs. Transparency 

Because of workers’ rights under the National Labor Relations Act, workplace investigators may not impose confidentiality restrictions on interviewees unless specific circumstances make it necessary. Circumstances that courts have found to necessitate confidentiality include when: (1) witnesses are in danger; (2) evidence is in danger of being destroyed; (3) testimony is at risk of being fabricated; (4) there is a need to prevent a cover-up; or (5) any other comparable serious threat.[6]

If confidentiality cannot be justified by one of those factors, investigators should take steps to reduce the risk of witnesses discussing the matter, which can possibly alter their recollection or complicate the ongoing investigation. An investigator may schedule interviews close in time to each other to reduce the chances of employees gossiping or sharing information; they may also ask for voluntary discretion on the part of each person being interviewed so long as they do not threaten the interviewees with adverse employment consequences.

5. Protecting the Complainant

It’s important to protect the complainant from retaliation during the investigation, which usually requires separating him or her from the alleged harasser (e.g., allowing the complainant to report to a different supervisor or work an alternate schedule). This can demonstrate that the employer is diligently investigating the matter while helping to prevent interactions that could potentially lead to retaliation claims.

6. Making Conclusions & Taking Action 

A thorough, complete investigation should conclude with a written report summarizing the investigator’s findings and making conclusions about the veracity of the claims.[7] If an allegation of wrongdoing is substantiated, appropriate discipline must be imposed on the harasser. Depending on the behavior in question, appropriate discipline may range from a verbal warning to termination. In addition to punishing the offending employee, it may be advisable to develop or bolster the company’s sexual harassment policies and training to prevent future occurrences.

Call Experienced Legal Counsel

Sexual harassment law prohibits behavior that a reasonable person would find it intimidating or abusive, which violates every employee’s right to a safe workplace, in an effort to make workplaces better for all employees. The New Jersey Law Against Discrimination (NJLAD) protects both men and women and from both heterosexual and homosexual harassment in the workplace. If you think you’re being sexually harassed or discriminated against at work, if you’ve been asked to testify in a workplace investigation, or if you’re an employer trying to conduct a thorough investigation into a sexual harassment complaint, the experienced employment lawyers at the Mark Law Firm can help. Contact us today to make an appointment at any of our convenient locations.

[1]Lehmann v. Toys R Us, 132 N.J. 587 (1993) (an employer can be liable for the sexual harassment of its employees in two ways: (1) for negligence or recklessness in failure to remediate the harassment; or (2) vicariously liability for the acts of its supervisors).

[2] Aguas v. State, 220 N.J. 494, 512 (2015).

[3] See Edries v. Quick Chek Food Stores, 2017 WL 244100, at *7 (N.J. App. Div. Jan. 20, 2017).

[4] EEOC Guidance on Vicarious Liability Employer Liability For Unlawful Harassment by Supervisors, June 18, 1999.

[5] N.J. Stat. §§ 2A:156A-3, -4.

[6] Banner Health System D/B/A/ Banner Estrella Medical Centers, 362 NLRB No. 137 (June 26, 2015), affirmed in part and reversed in part by Banner Health Sys. v. Nat’l Labor Relations Bd., 851 F.3d 35, 44 (D.C. Cir. 2017).

[7] Papp v. MRS BPO, 2015 WL 5247005, at *10 (D.N.J. Sept. 9, 2015).