New Jersey Employment Law Decision Protects Employees from Sexual Harassment, Even Where Harassment is by Employee of Another, Related Employer

A recent New Jersey employment law decision found that even where harassment is not by a co-employee, her employer may still be liable if the victim worked closely with the harasser in her workplace.

 

Background

Kristine Bodner was a certified alcohol and drug counselor employed by the Center for Family Services (the “Center”), a private nonprofit social services provider. The Center is a “provider agency” for the New Jersey Department of Child Protection and Permanency (the “Department”).  She was assigned to work at the Burlington office of the Department, a department of New Jersey state government.  She worked closely with the Department’s supervisors.  Clients were sent by Department to the Center.  The Center would assign clients to Bodner.  She assessed clients to see if they had substance abuse issues and if so to recommend the appropriate level of care, and report them to the case workers.  She would conference cases with Department case workers.

Ian Palumbo was employed by the Department.  He was a caseworker/senior investigator who also worked at the Department’s Brunswick office.  Several Department employees supervised Palumbo.  Bodner maintained that Palumbo sexually harassed her, including repeatedly making sexual comments and jokes, and insinuations that she had a sexual relationship with one of her supervisors.

Bonder filed an Equal Employment Opportunity (EEO) complaint objecting to Palumbo’s sexual harassment.  It was forwarded to the Department, which conducted an investigation.  Six days after filing the EEO complaint the Center transferred Bodner to the Department’s Camden office.  She claimed that she was “set up to fail” there, receiving no training or support, and that her complaint had been disclosed to employees there who were openly discussing it.

Shortly thereafter, Bodner contacted a doctor who advised her not to return.  She then took a leave of absence and never returned.

Six months later, the Department completed its investigation and found that Palumbo had violated Department policy by sexually harassing Bodner.  It suspended him for four days, which he negotiated down to a three-day suspension. He did not receive any remedial sexual harassment training and was promoted the following year.

 

Bonder’s Lawsuit

Bodner sued both the Center and the Department in the Law Division of the Superior Court of New Jersey for sexual harassment, retaliation for her complaint by transferring her, and constructive termination, all in violation of the New Jersey Law Against Discrimination.  Bodner claimed that the Department and Center were “joint employers.”  The Law Division judge ultimately dismissed Bodner’s suit on summary judgment (after a motion for reconsideration).  The judge found that the Department was not Bodner’s joint employer, and the Center could not be liable because the harassment was by an employee of the Department.  Thus, the trial court ruled that even if Bodner was sexually harassed, she had no remedy.

 

The Appeal and the Appellate Division’s Opinion

Bodner appealed to the Appellate Division of the Superior Court of New Jersey.

She argued that the Department and CFP were “joint employers.”  She also argued that the Center had an obligation to provide her a workplace free of discrimination and harassment.

The Appellate Division rejected Bodner’s argument that the Department was a “joint employer.”  It explained that the Law Division judge had correctly applied the test established in the case of Pukowsky vs. Caruso, which requires consideration of these factors:

(1) the employer’s right to control the means and manner of the worker’s performance; (2) the kind of occupation—supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the “employer;” (10) whether the worker accrues retirement benefits; (11) whether the “employer” pays social security taxes; and (12) the intention of the parties.

However, the Court rejected the Law Division judge’s decision to dismiss her suit against the Center.  The court explained:

There is no dispute that plaintiff was a CFS employee. The trial court assumed that because Palumbo was not a CFS employee, it had no control over him; it could not discipline him or remove him from the Burlington east office. While true, that circumstance does not mean that CFS was had no obligation to protect its employee from sexual harassment committed by a DCPP employee at plaintiff’s worksite. The fact that Palumbo did not work for CFS did not necessarily preclude CFS from collaborating and cooperating with DCPP—which had supervisory authority over Palumbo—to ensure a safe, harassment-free workplace for plaintiff. Furthermore, CFS’s asserted lack of control over Palumbo does not foreclose plaintiff’s retaliation claims asserting, for example, that CFS allegedly transferred her without her assent.

Thus, there remained questions of fact which are the role of a jury to decide after a trial, not a judge on a motion.  The Appellate Division explained that “Although it is true that CFS did not have the authority to discipline or transfer Palumbo, we believe a rational jury could conclude that it could have worked with DCPP and asked it to exercise its authority over Palumbo in an effort to address her sexual harassment complaint against Palumbo.”  Moreover, it was certainly a question of fact whether Bodner’s transfer and treatment were retaliation rather than innocent.

The Appellate Division therefore remanded Bodner’s case to the Law Division to proceed to trial against the Center.

 

The Takeaways

In some cases, a worker may be considered to be an employee of two “joint” employers.  While that was not the case in this matter, the Court made clear that if an employee is sexually harassed in her workplace she has a remedy and her employer may be liable.  And her employer will be liable if it retaliated against her for complaining about sexual harassment and discrimination in the workplace.

 

Contact Us

Our New Jersey employment attorneys represent employees and employers in all aspects of New Jersey employment law, including sexual harassment; harassment for other discriminatory reasons;  and retaliation for complaints of discrimination, illegal harassment and other illegal conduct.  Call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey employment attorneys.  We can help.