New Jersey continues to take steps toward passing legislation to strengthen employee protections involving harassment, discrimination, and retaliation. On September 14, 2020, NJ Bill A4637 (Proposed Amendment and/or the Bill), amending New Jersey’s Law Against Discrimination (NJLAD), was introduced to the New Jersey General Assembly. The Bill was subsequently referred to the Assembly Labor Committee. The Bill follows a comprehensive Report issued by the New Jersey Division on Civil Rights.
The Proposed Amendment includes:
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Requiring training, policies, and investigations;
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Expanding employee coverage and the statute of limitations under NJLAD;
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Codifying unlawful harassment and the standards for hostile environment claims;
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Clarifying the employer’s use of the Aguas/Faragher-Ellerth Affirmative Defense; and
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Imposing new employer reporting requirements.
New Jersey is among an increasing number of states taking a strong stand against harassment and discrimination in the workplace. While some states have already passed similar sexual harassment laws to the Proposed Amendment, New Jersey’s Bill would be far-reaching.
The NJLAD already applies to a wide range of employment situations and protected categories. The Proposed Amendment enhances those protections with training and policy requirements that apply to all protected categories such as race, creed, color, national origin, age, nationality, sex, gender identity, disability, affectional or sexual orientation, etc. Moreover, the Proposed Amendment contains broad employer reporting requirements regarding complaints of unlawful workplace discrimination or harassment.
Interactive and Participatory Training Required for ALL Employers & “Live” Training Required for Employers with 50 or More Employees
Both Large and Small Employers are required to have interactive and participatory training for ALL employees.
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“Large employers” are defined as businesses with 50 or more employees.
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“Small employers” are defined as businesses with fewer than 50 employees.
Employers with 50 or more employees must provide training in a live, in-person setting where participants can ask questions.
Regardless of the size of the business, employers must provide training to all employees within one (1) year from the effective date of the law and at least once every two (2) years thereafter. In addition, employers must provide training to all new employees within 90 days of the employee’s initial hire date.
A few highlights on what the training must include are:
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Definitions and examples of unlawful discrimination and unlawful harassment in employment;
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Information concerning bystander intervention;
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A description of the process for filing internal complaints of discrimination or harassment;
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Directions as to how to contact the DCR to file complaints for violations;
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Retaliation prohibitions and sanctions for violators and supervisors who knowingly allow the conduct.
Training must be provided to all supervisory employees at least once every two (2) years and to all new supervisory employees within 90 days of initial hire or promotion. The supervisor training covers a broader range of issues, including the specific responsibilities of supervisors with respect to preventing discrimination, harassment, and retaliation and taking appropriate measures to address complaints. All employers must keep a record of their employees’ completion of all required trainings. Trainings should be reviewed at least annually to ensure that they are up to date and compliant.
The Bill anticipates the DCR’s assistance in creating model training programs for employers, particularly small employers, to use. Large employers will have additional training requirements.
Harassment and Anti-Discrimination Policy Requirements
Aside from the above-referenced training, the Proposed Amendment requires all employers to disseminate written policies within one (1) year from the date of enactment. If enacted, all New Jersey employers will be required to implement written harassment and anti-discrimination policies that cover interactions with employees, vendors, suppliers, customers, clients, and patrons.
In addition to similar components required in the trainings, some examples of what the policies will be required to include are:
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A statement of the employer’s commitment to conducting prompt, thorough, and impartial investigations of complaints of such discrimination or harassment.
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Directions as to how to contact the DCR to file complaints for violations;
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The statute of limitations periods applicable to filing a claim of unlawful discrimination and harassment; and
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A description of potential consequences for violating the policy.
The Bill requires all employers to disseminate the policy at least once annually to all employees, and to each employee:
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At the beginning of their employment;
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Who complains internally about a violation of the policy, at the time such complaint is made;
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Who is interviewed by the employer or the employer’s designee in connection with any investigation of any complaint about a violation of the policy, prior to or at the time of such interview; and
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Whenever any updates to the policy are made. Large employers have additional policy requirements as well.
Large employers will have additional policy requirements as well.
The Bill directs the DCR to provide a model policy that small employers may adapt for their own workforce.
Reporting & Record-Keeping Requirements
The Bill also imposes an obligation on employers to report discrimination and harassment complaints. Beginning one (1) year after the date of enactment of the law, Large employers will be required to collect and annually report to the DCR complaints received regarding unlawful workplace discrimination or harassment. The data to be reported includes: the total number of complaints filed; the number of complaints filed that were found by the employer to be substantiated; the number of complaints filed that were found by the employer to be unsubstantiated; and the number of unresolved or pending complaints at the time of the reporting.
Prompt, Through and Impartial Investigations
The Proposed Amendment specifies that employers must disclose their policies on conducting “prompt, thorough and impartial investigations” into complaints of harassment, discrimination, and retaliation.
DCR Report’s Investigation “Best Practices”
In addition, in its Report, the DCR delineated “Best Practices” for conducting investigations regarding discrimination, harassment, or retaliation complaints. The DCR cautions employers to “consistently enforce prohibitions on retaliation throughout the investigations process and maintain the confidentiality of the complainant to the fullest extent possible to prevent retaliation.”
The DCR urges employers to “allocate sufficient resources and authority to those responsible for investigating complaints” and “ensure that those conducting investigations are impartial, objective, and well-trained.” The DCR highlighted that this may include employers engaging third parties trained in conducting “impartial, independent investigations.” The DCR also recommends that employers maintain policies that set forth the stages and procedures for conducting investigations, empower their investigators to “reach meaningful conclusions” and then follow up on those conclusions with corrective action. Employers should also issue guidance to appropriately assess credibility, weigh evidence, make findings and reach a conclusion.
Conclusion
If enacted, the Proposed Amendment would position New Jersey on the cutting edge of workplace protections designed to prevent harassment, discrimination, and retaliation. The Proposed Amendment followed the February 2020 Report from the Division on Civil Rights and New Jersey Coalition Against Sexual Assault entitled “Preventing and Eliminating Sexual Harassment in New Jersey” and Governor Murphy’s “Proposals to Strengthen New Jersey’s Anti-Harassment Laws,” simultaneously released on February 18, 2020. If passed, the Proposed Amendment would implement many of the recommendations included in the DCR Report and the Governor’s Proposals. The DCR Report followed three (3) public hearings of testimony regarding ways to combat sexual harassment. Kirsten Scheurer Branigan, Esq. provided testimony during the hearing on September 24, 2019.
Related Articles & Trainings
DCR Report and Proposed Legislation Aim to Enhance Harassment Protections, By Kirsten Scheurer Branigan and Carole Lynn Nowicki
KSBranigan Law Announces New Fall 2020 Training Programs
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
