FEDERAL COURT FINDS THAT POLICE DEPARTMENTS MAY BE LIABLE FOR SEXUAL HARASSMENT OF CITIZENS UNDER THE LAW AGAINST DISCRIMINATION

FEDERAL COURT FINDS THAT POLICE DEPARTMENTS MAY BE LIABLE FOR SEXUAL HARASSMENT OF CITIZENS UNDER THE LAW AGAINST DISCRIMINATION

On June 30, 2009 the Hon. Joseph H. Rodriguez of New Jersey’s Federal District Court issued an opinion in Vandergrift v. City of Margate 2009 WL 1913412 (Civil Action No. 1:07-cv-02623JHR-JS) that dramatically expanded the reach of New Jersey’s Law Against Discrimination (NJLAD) in favor of victims of sexual harassment by municipal police departments. In his opinion, Judge Rodriguez held that a civilian victim of sexual harassment by a municipal police officer had the right to sue the officer and his police department under the public accommodation portion of NJLAD. Judge Rodriguez also clarified what a sexual discrimination plaintiff must prove in order to hold a municipality liable under NJLAD. The implications of this decision could create enormous changes in the way municipal police departments train and supervise their officers.

The facts of the case are not complicated. In June of 2005, the plaintiff, a 24 year old casino waitress who had been out drinking with friends, was stopped for a motor vehicle violation by an officer of the Margate Police Department. During the course of the motor vehicle stop the officer kissed the plaintiff, asked for her telephone number and requested that she remove her undergarments for him. The plaintiff gave the officer her telephone number but avoided his request for her undergarments and the officer let her leave despite that fact that she was obviously intoxicated.

The plaintiff was stopped for DWI a short time later by the police in a neighboring community. Shortly after her release, the plaintiff received a telephone call from the officer who identified himself by his first name. The officer called again the following morning and during these phone calls he made crudely sexual overtures towards the plaintiff and propositioned her for sex. She complained to the county prosecutor’s office which conducted an investigation that ultimately led to the filing of administrative charges against the officer, who ultimately resigned from the department. The plaintiff retained our office to file suit against the officer and the police department alleging various causes of actions, including violation of the public accommodation portion NJLAD.

Although many people are familiar with NJLAD’s protection against sexual discrimination in employment, NJLAD’s protections also extend to places of public accommodation. The Act specifically states:

All persons shall have the opportunity to obtain
employment, and to obtain all the accommodations,
advantages, facilities, and privileges of any place
of public accommodation . . . without discrimination
because of . . . sex . . . subject only to conditions
and limitations applicable alike to all persons. This
opportunity is recognized as and declared to be a
civil right.

N.J.S.A. 10:5-4(emphasis added).

A second portion of the Act further provides that "[i]t shall be . . .

unlawful discrimination":
For any . . . agent, or employee of any place of
public accommodation directly or indirectly to
refuse, withhold from or deny to any person any of
the accommodations, advantages, facilities or
privileges thereof, or to discriminate against any
person in the furnishing thereof . . . on account of
the [person's] . . . sex. . . .

N.J.S.A. 10:5-12(f)(1).

Judge Rodriguez was not writing on an entirely clean slate when he issued his opinion in Vandegrift. New Jersey’s Appellate Division had twice concluded that local and county law enforcement agencies are places of public accommodation under NJLAD. The issue was first addressed in Ptaszynski v. Uwaneme, 371 N.J. Super. 33, 347-48 (App. Div.), certif. denied, 182 N.J. 147 (2004), where African-born parties alleged that a municipal police department, in responding to a domestic violence complaint, discriminated against them based on race. The appellate court concluded that:

…[the Woodbridge] Township police department -- both the building and the individual officers -- is a place of public accommodation. The municipal police force is nothing more than “an executive and enforcement function of municipal government….” As a public entity, by its very nature a police force is a place of public accommodation.

The court went on to explain that:

If a police force is not subject to the NJLAD, subject to certain constitutional limitations, the officers may be free to discriminate. To countenance discrimination by a police force, while seeking to eradicate discrimination…in private organizations, public libraries and universities, would be both inconsistent with and contrary to the goals of the LAD.

Id.

The same conclusion was reached in Thomas v. County of Camden, 386 N.J. Super. 582, 591-94 (App. Div. 2006), a case involving claimed sexual harassment against a student taking a dispatching course at a county correctional center. In Thomas, the court said:

Without question, sexual harassment is a “form of targeted discrimination.” Equally without doubt, the LAD proscribes sexual harassment both in the workplace,…and in places of public accommodation.

* * * * * *

…[T]he Camden defendants are public entities and, by their very nature, constitute a place of public accommodation.

* * * * * *

…If the County of Camden and its executive units are not subject to the LAD, its employees would be free to discriminate, a prospect we simply could not tolerate. …Clearly, then, “any State governmental agency is a place of public accommodation for purposes of inclusion under the umbrella of the LAD….”(citing Ptaszynski, 371 N.J Super. at 348).

So, in Vandegrift, Judge Rodriguez melded the rights of citizens to bring claims for discrimination under NJLAD found in Ptaszynski with the right to bring sexual harassment claims against places of public accommodation found in Thomas, thereby opening a whole new approach the recurring problem of sexual harassment of citizens by law enforcement personnel.

But finding that a cause of action exists is only half the battle. The next question is what needs to be proven to hold a municipality liable for the acts of sexual harassment by its police officers. Both the defendant municipality and the plaintiff agreed that a municipality could not be strictly liable for the wrongful acts of its employees: something more had to be shown. The municipality argued that in order for a municipality to be liable under NJLAD a plaintiff had to show that it was “deliberately indifferent” to the threat of harassing conduct; a standard found in the federal Civil Rights Act of 1876, 42 U.S.C.A. § 1983.

Under Section 1983, a municipality is liable for a civil rights violation only if the violation is caused by a policy, custom or practice of the municipality. Monell v. Dept. of Social Services¸ 436 U.S. 658, 690-691 (1978). A municipal custom may exist where the relevant practice said to have caused constitutional injury is “so permanent and well settled as to constitute a custom or usage with the force of law.” Monell, 436 U.S. at 691; see also Bryan County Commissioners v. Brown, 520 U.S. 397, 404 (1997).

Where the policy or custom does not facially violate the law, causation of the violation can also be established by demonstrating that the municipal action was taken with deliberate indifference as to its known or obvious consequences. Bryan County Commissioners, 520 U.S. at 404. This means that to prove liability for deliberate indifference the evidence must show that a policy-maker 1.) had notice that constitutional violation was likely to occur; and 2.) acted with deliberate indifference to a known risk that was demonstrated through past conduct. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000); Williams v. Borough of West Chester, 891 F.2d 458, 467 (3rd Cir. 1989).

Generally, actual notice is established through a pattern of known prior constitutional violations. Bryan, 520 U.S. at 409-10; Berg, 219 F.3d at 276; Beck, 69 F.3d at 973 (holding that a series of written complaints of violence against an officer allowed a reasonable jury to conclude that policymaker knew or should have known of violations); Beilevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990) (determining that policy makers must be aware of similar conduct in the past but failed to take action to prevent future violations); Beers-Capitol v. Whetzel, 256 F.3d 120, 137 (3d Cir. 2001) (requiring plaintiff in § 1983 action to demonstrate “that the defendant knew of the risk to the plaintiff before the plaintiff’s injury occurred”).

The plaintiff’s position was different. She argued that municipal liability under NJLAD should be based upon the standards set forth in the New Jersey Supreme Court’s seminal hostile work environment case, Lehmann v. Toys `R΄ Us, Inc., 132 N.J. 587 (1993), which dealt with employment discrimination under NJLAD. Under the Lehmann analysis, an employer is liable for compensatory damages for a sexually hostile environment in three circumstances: 1.) when the employer grants a supervisor authority to control the work place and the supervisor abuses that authority to create a hostile environment; .2) when the employer negligently manages the workplace by failing to enact anti-harassment policies and mechanisms; and .3) when the employer has actual or constructive knowledge of the harassment and fails to take effective measures to end the discrimination. Under the facts of her case, the plaintiff argued that it was clear that the city’s commanding officers knew or should have known of the officer’s propensity for sexual misconduct and their failure to take action was negligence under the Lehmann liability.

Judge Rodriguez relied upon the New Jersey Supreme Court’s 2007 decision in L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381, 406 (2007), a case involving a sexually hostile school environment, which made clear that the standards enunciated in Lehmann would generally be applied in public accommodation cases. (“We are satisfied that the [NJ]LAD standard governing hostile work environment sexual harassment … comports best with the circumstances presented in this appeal.”) Specifically rejecting a strict liability standard, the Supreme Court wrote:
In the school setting, the Lehmann standard requires that a school district may be found liable under the LAD for student-on-student sexual orientation harassment that creates a hostile educational environment when the school district knew or should have known of the harassment, but failed to take action reasonably calculated to end the harassment.

Id. at 407.

The Court then appended an independent but related obligation upon school districts:
… [W]e require school districts to implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment. Appropriate and reasonable measures will reinforce the basic principle that student-on-student sexual harassment is unacceptable.

Id.

Thus, Judge Rodriguez determined that Lehmann’s negligence theory, i.e., the employer knew or should have known of the harassment, was applicable to this case.

The negligence theory of employer liability was recently discussed by
the Appellate Division in Cerdeira v. Martindale-Hubbell, 402 N.J. Super. 486 (App. Div. 2008). Noting the lack of New Jersey cases discussing an employer’s negligence for not having effective anti-harassment policies and training, the Cerdeira court looked to the groundbreaking federal sexual harassment case, Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72-73 (1986), where the United States Supreme Court rejected a defense that the existence of a general policy against discrimination that neither mentioned sexual harassment nor emphasized the employer’s stance against such discrimination was enough to protect the employer from liability. The Appellate Division also discussed Ocheltree v. Scollon Prods., 335 F. 3d 325 (4th Cir. 2003) cert. denied 540 U.S. 1177 (2004) where the Fourth Circuit held:

A Title VII plaintiff *** must prove that the harassment was imputable on some basis to her employer. In a case where an employee is sexually harassed by a coworker, the employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it.

335 F. 3d at 333-34 (citing Burlington Indus., Inc. v. Ellerth 524 U.S. 742, 759 (1998) for the proposition that "[n]egligence sets a minimum standard for employer liability under Title VII").

Although Judge Rodriguez’ opinion did not evaluate the evidence of the city’s knowledge and negligence, there was much to be considered by a jury. Most notably, the officer had been charged with domestic violence in 1998. As part of its investigation, the municipality retained a psychiatrist to evaluate the officer and his report was remarkably prescient about the officer’s psychological make up and his potential for future misconduct. Despite the sharpness and focus of the psychiatrist’s comments, the police department permitted only token compliance to a treatment plan and failed to followed up with more evaluations and counseling.

Additionally, another police officer claimed that the defendant officer was having sexual relations while on duty. Despite the difficulties of proving the charges, the police department did nothing to counsel, instruct, warn or supervise the officer following these serious allegations. Finally, there was no evidence of any general or specific training or program that instructed police officers not to engage in sexually harassing conduct towards female members of the public.

From these and other facts, the plaintiff felt that a jury could certainly conclude that the municipality was negligent in its supervision and training of its officer.

Vandegrift is therefore a groundbreaking case on two fronts. First, it recognizes that female citizens[1] who are sexually harassed by police officers are protected by the public accommodation portion of New Jersey’s Law Against Discrimination. Second, it concludes that such liability can be established when management of a police department knew or should have known of an officer’s propensity for sexual misconduct and it failed to take action to prevent further harm, thereby extending the liability principles set forth in Lehmann v. Toys `R΄ Us, Inc., 132 N.J. 587 (1993) to public accommodation claims brought under NJLAD.

We would be pleased to discuss this case and its implications with you.
-Tom Barron

***The information included in this newsletter is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

[1] Clearly, other forms of sexual harassment would be actionable under NJLAD