On June 22, 1999, the United States Supreme Court and the Superior Court of New Jersey handed down separate rulings which will further encourage employees to file lawsuits charging harassment.
The Supreme Court Decision
In Kolstad v. American Dental Association, the United States Supreme Court ruled that a punitive award may be granted to an employee under Title VII based solely on a mindset of "malice" or "reckless indifference" on the part of the employer in sexual harassment cases as well as other federally protected classes. The ruling settled conflicting decisions in the lower federal courts, some of which required the plaintiff to prove egregious conduct by the employer, independent of any malice or reckless indifference to the employee's Title VII rights.
Now, while evidence of egregious conduct by the employer towards the employee will provide a "valuable means" of demonstrating malice or reckless indifference, the employee can still recover punitive damages under Title VII without a separate showing of egregious conduct. The Supreme Court left unanswered the precise standard for demonstrating that the employer acted with malice or reckless indifference to the employee's Title VII rights, virtually guaranteeing more litigation and conflict in opinions over the contours of this standard.
The New Jersey Appellate Court Decision
In Baliko v. International Union of Operating Engineers, the Superior Court of New Jersey, Appellate Division, ruled that an employee pursuing a sexual harassment claim under the New Jersey Law Against Discrimination (LAD) [N.J.S.A 10:5-12] need not demonstrate any conditions of employment have been altered above and beyond the hostile atmosphere itself. The appellate court followed the reasoning in last year's New Jersey Supreme Court decision in Taylor v. Metzger (subject of an earlier Alert), in which the Court held that "(A) loss of tangible job benefit is not necessary since the harassment itself affects the terms and conditions of employment." In addition, the Appellate court provided guidance on instructing juries in LAD cases that "it is unnecessary for each plaintiff to prove she was subjectively harmed to establish an LAD violation as the hostile work environment is the legally recognized harm."
Practical Considerations for Employers
These decisions continue the trend we have observed toward easing the standards for employees to file and prevail in claims of discrimination. Although the two cases discussed here involve the issue of sexual harassment in the workplace, their holdings are not restricted to sexual harassment. As we have noted in prior Alerts, Title VII and LAD are statutes which protect many different classes from discrimination in the workplace, including harassment related to those classes.
Despite language in several Court decisions that the anti-discrimination statutes are meant to eradicate discrimination in the workplace and not to act as a "conduct code," the practical effect of these decisions is to force employers to sanitize the workplace, and not tolerate comments, banter, jokes, e-mails, signs or posters which may offend on the basis of sex, race, sexual orientation, color, religion, national origin, creed, ancestry, marital status, age, or disability.
This Legal Alert was prepared by Bruce L. Harrison, Esq. and Robert J. Hagerty, Esq., members of Capehart & Scatchard's Employer Relations and Environmental Department. If you would like additional information, please contact Mr. Harrison or Mr. Hagerty at 856.234.6800 or bharrison@capehart.com or rhagerty@capehart.com, respectively.
The authors would like to acknowledge the assistance provided by their law clerk, Henry Oh, in the preparation of this Alert.