By Rachel A. Gonzalez
A New Jersey appellate court recently upheld the dismissal of a hostile work environment race discrimination and harassment claim, finding the employer took action to prevent discrimination, properly addressed the employee’s complaint, and prevented further discrimination against him.
Brian Dunkley worked for S. Coraluzzo Petroleum Transporters as an oil delivery driver. He reported directly to Elwood Sickler. The company assigned another delivery driver, Richard Harrington, to train Dunkley during 2 weeks of “on-road” on-the-job training.
Dunkley claimed that Harrington was a supervisor who subjected him to racial harassment by making multiple race-related comments, including talking about the Ku Klux Klan, and subjected him to race discrimination by not properly training him.
The company’s employee handbook prohibits harassment and discrimination. The handbook specifies: “Any employee who has a complaint regarding harassment or discrimination must report the matter to their manager.
If that person is not available, or if you believe it would be inappropriate to contact that person, contact the Human Resources Department.” The handbook contains a phone number for the HR department.
Dunkley never made a complaint that complied with the employee handbook procedures. When he failed to report for work one day, Sickler called him and asked him to explain what was happening. Dunkley then raised his first complaint against Harrington.
The company hadn’t received any prior complaints against Harrington. Sickler, who had received antidiscrimination and antiharassment training, reiterated the company’s antidiscrimination policy to Dunkley. The company then arranged for another employee to train Dunkley and spoke with Harrington.
Dunkley had no problems with the new trainer, never saw Harrington again, and didn’t experience any other race discrimination or racial harassment. However, he claimed that other employees “would shy away” from him and that “nobody would even talk to [him].” He claimed that his coworkers’ behavior made him feel “uncomfortable” and “prevent[ed] him from ‘getting a fresh start.'” As a result, he resigned.
Dunkley subsequently filed a lawsuit against the company claiming that Harrington subjected him to a hostile work environment by discriminating against him and harassing him because of his race.
He alleged that his coworkers treated him differently after he reported the discrimination, and the company was vicariously liable under the New Jersey Law Against Discrimination (NJLAD) for allowing the hostile work environment. The trial court dismissed his claims.
Appellate court’s decision
A New Jersey appellate court reviewed the dismissal of Dunkley’s claims in light of the recent New Jersey Supreme Court ruling in Aguas v. State, 220 N.J. 494 (2015), and applied the Aguas sexual harassment framework to Dunkley’s case.
In an NJLAD hostile work environment case, the initial burden is on the employee to prove the employer “negligently created a discriminatory work environment by failing to exercise due care with respect to racial discrimination in the workplace, by breaching the duty of due care, which causes [the employee] harm.” To defend against such a claim, the employer may establish:
[T]he existence of: (1) formal policies prohibiting harassment in the workplace; (2) complaint structures for employees’ use, both formal and informal in nature; (3) anti-harassment training, which must be mandatory for supervisors and managers, and must be available for all employees of the organization; (4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint procedures; and (5) an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practices.
Not all of the factors listed must be met. Rather, the factors are reviewed to determine if the employer has effective preventive mechanisms in place to guard against discrimination.
Applying the factors to the facts at hand, the court found that:
- Management employees received antidiscrimination training.
- The company had an antidiscrimination and antiharassment policy.
- Although Dunkley never complained, the company conducted an investigation.
- The company reassigned Dunkley to another trainer.
- Dunkley did not experience any further discrimination.
The court also held that “‘perceived ostracism by co-workers’. . . [was] insufficient to support claims for constructive discharge or hostile work environment under the [NJLAD].”
The court found that Dunkley presented no evidence that the company was negligent or ignored its affirmative duty to prevent discrimination because it adopted well-defined antidiscrimination policies, trained its employees, and implemented procedures to curb the misconduct once it was notified of the behavior.
In response to Dunkley’s claim that Harrington should have been discharged, the court held that nothing in the NJLAD requires a “jury to assess the degree of effectiveness of [the employer’s] response to [the employee’s] complaints when the discriminatory conduct admittedly was addressed and rectified.”
The court found it important that even though the employee didn’t follow the formal complaint process, his supervisor, once notified of the misconduct, quickly addressed the issue and prevented any further discrimination or harassment.
This case clearly demonstrates the benefits of training supervisors on your organization’s discrimination and harassment policies and how to promptly and effectively address complaints about improper conduct.
Rachel A. Gonzalez is a contributor of New Jersey Employment Law Letter.