EMPLOYMENT LAW ARTICLES

EMPLOYMENT AND THE LAW
Copyright 2007

By Charles R. Cohen, Esq.

Although it is widely known that unlawful discrimination is prohibited in the workplace, many employers are unaware of the extent of their obligation to investigate allegations of discrimination. Throughout the country, and particularly in New Jersey, there exists a growing body of law which holds that employers who neglect to properly investigate such allegations do so at their peril.

Whether the issue involved is unlawful discrimination in general or hostile workplace environment in particular, there is no question that New Jersey employers are obligated to enact, publish and enforce anti-discrimination policies and complaint procedures. Such complaint procedures must include the thorough and effective investigation of all allegations of discrimination. For example, even if the potential victim fails to report the alleged problem, and the employer learns of the allegations through second- or third-hand hearsay, New Jersey law imposed upon employers a legal duty to investigate claims of hostile work environment based upon sex.

Besides the legal duty to investigate claims of unlawful discrimination, there are other reasons for a thorough and effective investigation. Coupled with effective preventative mechanisms, such an investigation is considered an affirmative defense to certain discrimination claims, and thus may constitute a 'safe haven' for diligent employers. Additionally, and just as importantly, employers who fail to implement effective investigations may be held liable for the unlawful acts of an employee, even when the employee's conduct is outside the scope of his or her employment.

Thus, investigation of discrimination claims should not be taken lightly. Rather, it is essential that it be properly planned and carried out by an appropriate and qualified investigator. The conduct of the investigation is critical, as is the product of the investigation and the manner is it is documented and disseminated. In fact, in one recently reported court decision, an employee sued the attorney who conducted the investigation.

Of course, the employers' actions after the investigation are equally important. Depending on the facts, employers must take appropriate remedial measures that take into account the rights of all affected parties.

The law of discrimination is constantly evolving, and employers need to be aware of the changing risks they face. With forethought and experienced legal counsel, careful employers can regard these risks as opportunities to protect their workforce and safeguard against potential liability.

(Charles R. Cohen, Esq. is of counsel to the law firm Cohn Lifland Pearlman Herrmann & Knopf LLP located in Saddle Brook, NJ. He is a Certified Civil Trial Attorney with a general litigation practice focusing on employment, chancery and commercial litigation. Mr. Cohen is admitted to practice in New Jersey, New York and Colorado. He is also admitted to practice before the U.S. District Court for the District of New Jersey, the New York State Courts, the U.S. District Courts for the Southern and Eastern Districts of New York and the U.S. Supreme Court. Mr. Cohen is a member of the New Jersey, New York and Colorado Bar Associations, the Essex County Bar Association and the Association of Trial Lawyers of America.)