In fact, whether or not an employer takes effective measures to stop harassment by a co-worker will be relevant to an employer's defense in a sexual harassment lawsuit.
In addition, employers facing a retaliatory harassment claim can assert an affirmative defense based on their exercise of reasonable care to prevent and correct the harassment. Basically, the court determined that it comes down to a standard established by the court in Lehmann v. Toys 'R" Us, Inc. 132 N.J.587 at 623, 626 a.2d 445, where the court held that, "Although an employer's liability for sexual harassment of which the employer knew or should have known can be seen to flow from agency law, it also can be understood as direct liability. When an employer knows or should know of the harassment and fails to take effective measures to stop it, the employer has joined with the harasser in making the working environment hostile. The employer, by failing to take action, sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser. "Effective" remedial measures are those reasonably calculated to end the harassment. The "reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment."
The court did not enter into a discussion of the intricacies of the internet, but began its reasoning by discussing the fact that, had the bulletin board been real and not virtual, and placed in a lounge used exclusively by the pilots and crew of an airline, if management had notice of messages creating a hostile work environment, then plaintiff employee could assert a cause of action for hostile work environment sexual harassment. Moreover, the court stated that if there had been a place frequented by senior management, pilots and crew where one of the crew was regularly subjected to sexually offensive insults, which were a continuation of workplace harassment, if the employer had notice of the harassment in and out of the workplace, it would have some duty to address the conduct.
Therefore, what the court had to determine was whether the electronic bulletin board was the equivalent of a physical bulletin board at the workplace of a work-related place. The court agreed with the trial court's decision that there were no critical differences between a physical bulletin board or location and the electronic bulletin board in question. Given that courts had already established that harassment outside of the workplace could contribute to a pattern of sexual harassment in the workplace, the fact that the bulletin board was not located on the job site had little impact on the plaintiff's case. Employers can clearly be held liable for retaliatory harassment by coworkers. According to plaintiff employee, she gave notice to defendant employer of the harassment on the electronic bulletin board as early as March 1995. The court likened the electronic bulletin board to traditional after-hours meeting places, where outsiders had frequently faced harassment. The court found that "severe or pervasive harassment in a work-related setting that continues a pattern of harassment on the job is sufficiently related to the workplace that an informed employer who takes no effective measures to stop it" is giving tacit approval of such harassment. Blakey v. Continental Airlines, 751 a.2d 538 at 550. While the court believed defendant employer probably obtained benefits from the relationship, it held that the trial court needed to determine whether defendant employers derived a substantial workplace benefit from the relationship between the electronic bulletin board, the employer, and CompuServe (the internet service provider).
The court then turned to consideration of the issue of personal jurisdiction over defendant pilots. It observed that the parties seemed to believe that the case presented novel issues of Internet jurisdiction, but the court disagreed with that characterization. It believed that the issue of jurisdiction could be resolved by examining whether the state had power over the parties, and that power could be based on either personal presence in the state or the establishment of minimum contacts with the state. Therefore, the question involves not only whether conduct occurred in the forum state, but also whether the result of that conduct occurred in the forum state. In fact, New Jersey's criminal law even extends criminal jurisdiction over offenses which result in an element of the crime occurring in New Jersey. N.J.S.A. 2C:1-3a (1). Therefore, the court looked at whether the defendant coworkers had sufficient minimum contacts with New Jersey to justify New Jersey exercising personal jurisdiction over them. As a result, the court believed that the question was whether the harassment could have been expected to cause injury in New Jersey.
It cannot be ignored that plaintiff employee was involved in sexual harassment litigation with defendant employer in New Jersey at the time of the alleged harassment at the heart of this lawsuit, and that such harassment was alleged to be in retaliation for her having filed a sexual harassment lawsuit. Furthermore, plaintiff employee pled that defendant employers were aware of such litigation, because the litigation formed the underlying subject matter of the posts on the company's electronic bulletin board. The court believed that posting such messages in a traditional national newspaper would clearly establish jurisdiction in New Jersey and believed that the instantaneous nature of electronic communication did not lessen the state's jurisdictional power. Moreover, the court had previously concluded that it was the quality of a message, not its means of communication, which is important when one considers long-arm jurisdiction. Therefore, the court determined that if the defendant coworkers' statements were capable of defamatory meaning and were published with knowledge that it could harm plaintiff employee's pursuit of her civil rights in New Jersey, the defendant coworkers' contacts with New Jersey were sufficient to establish jurisdiction.
Next, the court looked at whether New Jersey asserting jurisdiction would affect notions of fair play and substantial justice. This involves examining whether defendant coworkers had reason to believe that New Jersey would have an interest in vindicating plaintiff employee's rights. In McDonnell v. State of Ill, the court determined that for anti-discrimination laws, the traditional jurisdictional focus has been on the "forum where the effect of the discrimination occurs." McDonnell v. State of Ill., 163 N.J. 298, 748 a.2d 1105 (2000). All parties were aware that plaintiff employee had a sexual harassment suit pending. The court believed that retaliation, regardless of its location, could clearly have an impact on plaintiff employee's lawsuit. What the court could not determine was whether or not the defendant coworkers were aware that plaintiff employee's lawsuit was pending in New Jersey, though they were clearly aware that she had filed a lawsuit. Therefore, the court urged the trial court to approach the jurisdictional issue on a step-by-step basis, and the burden should remain on plaintiff employee to plead sufficient facts to establish jurisdiction over each of the individual defendants. To do so, plaintiff employee must take discovery of the individual defendants to determine the extent of their knowledge at the time of that they posted the statements.
Next, the court determined that the trial court would have to separate those statements that could not be considered harassing or defamatory from those statements that could be. Then, the trial court has to determine whether triable issues of fact existed regarding whether the electronic bulletin board benefited defendant employer, whether defendant employer knew of the conduct, and whether the conduct was severe enough to contribute to a hostile work environment. In addition, defendant employer may be able to assert an affirmative defense if they took steps to prevent and promptly correct harassment.
The court reversed and remanded the lower court's decision. The court determined that the record was inadequate to determine whether the relationship between the electronic bulletin board and defendant employer established a connection with the workplace sufficient to impose liability on defendant employer for workplace harassment. The court remanded that aspect of the dispute to the Law Division. The court determined that defendant co-workers who published defamatory electronic messages on a forum knowing that such messages would be published in New Jersey and could impact plaintiff employee's efforts to seek a remedy under New Jersey's Law Against Discrimination, could properly be subject to jurisdiction in New Jersey.
Blakey v. Continental Airlines, 751 a.2d 538 (2000).
Lehmann v. Toys 'R" Us, Inc. 132 N.J.587 a.2d 445 (1993).