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Recent decisions have specifically held that the absence of measures to effectively prevent discrimination and harassment presents strong evidence of an employer’s negligence and, thus, the employer is not immune from vicarious liability for an employee’s harassing conduct. These cases set forth guidelines that employers can use to prevent harassment and establish an affirmative defense. MAINTAIN A FORMAL POLICY In Gaines v. Bellino, 173 N.J. 301 (2002), the employer argued that because it had an anti-harassment policy included within its employee handbook and because the harassing supervisor was disciplined for the misconduct, the employer could not be held liable. The court held that although the existence of the anti-harassment policy was helpful, it was necessary to examine two factors to determine whether the employer’s negligence contributed to the harassment: (1) whether the employer conducted mandatory training for all employees on its anti-harassment policy; and (2) whether the employer had effective monitoring mechanisms to ensure the reliability of the prevention and remedial measures available to employees. In response to this inquiry, the court noted that, notwithstanding the fact that the employer had an anti-harassment policy, numerous employees, including the alleged harasser, had never received any training concerning the anti-harassment policy. Moreover, the court stated that the record could support a jury finding that the plaintiff’s supervisor had been permitted to create an atmosphere where harassment allegations were brushed aside, ridiculed or were viewed as cause for retribution. Yet another clear demonstration of the need for a strong and enforced harassment policy can be found in the Fourth U.S. Circuit Court of Appeals decision in Alexander v. Alcatel NA Cable Systems, Inc. 4th Cir., No. 01-207, (Oct. 15, 2002), in which the court held that the documentation of the employer’s sexual harassment policy prior to the plaintiff’s 1996 complaint was “thin.” The evidence presented showed that prior to 1996, the employer’s policy consisted of only two, one-page documents. The first, a 1994 memorandum addressed to 19 individuals — apparently supervisors at the employer’s facility — merely set forth a schedule for mandatory sexual harassment classes. The second document, a January 1996 memorandum to all plant employees, reminded the employees of the existence of the company’s policy against sexual harassment. Neither memorandum set forth the company’s policies and procedures for combating sexual harassment. Not until November 1996, after Alexander complained about the harassment by her co-worker, did the employer circulate a memorandum that advised employees as to the specifics of the company’s sexual harassment complaint procedures. Alexander claimed that even if the employer had such a policy in place, it was neither well publicized nor enforced. Companies have to ask whether they have sufficient policies in place to prevent harassment.

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