Employers must disclose records of harassment investigations, New Jersey court rules.

In an important decision for sexual harassment plaintiffs, the New Jersey Supreme Court has ruled that an employer's records of the steps it took to investigate harassment claims and discipline the harasser should generally be turned over to the plaintiff during discovery.

The March 26 ruling is believed to be the first time a state high court has spoken on the discoverability of a company's investigation records. Employment rights attorneys hailed the decision, saying the records may be crucial to a worker's case.

"In most cases, if [an employer] can show that a prompt investigation [was pursued] and effective remedial action was taken, that is a successful defense to sexual harassment claims," said Lawrence Markowitz, an attorney in York, Pennsylvania, and chair of ATLN's Employment Rights Section. When employers claim they conducted a thorough investigation but refuse to disclose the records, "that's trying to have your cake and eat it too.

"It comes down to a fundamental fairness issue," he said. "Otherwise, the defendant can say, `We did a prompt and effective investigation. Trust us.'"

Now that courts have largely resolved questions about what constitutes sexual harassment and a hostile work environment the adequacy of employer investigations "has become the third-generation key issue in sexual harassment cases," said civil rights attorney Sheldon Stark of Royal Oak, Michigan.

The New Jersey Supreme Court overturned a trial court's decision to grant a protective order to the New Jersey Turnpike Authority. The case was brought by a clerk who claimed she was harassed by two supervisors over several years. (Payton v. New Jersey Turnpike Authority, 691 A.2d 321 (N.J. 1997).)

"Full discovery may enable plaintiff to support and to advance her argument that defendant's delay in investigating her complaint and its delay in preparing a report until four days after she had filed this lawsuit reflected an unwillingness promptly to investigate and to remediate her allegations of sexual harassment," Justice Alan Handler wrote for the unanimous court.

He added that a prolonged investigation that leaves the employee subject to continued harassment is an inadequate remedy. "Such a process, in reality, indirectly punishes employees with the temerity to complain about sexual harassment and cannot constitute `effective' remediation," Handler wrote. "Indeed, such a scheme can be viewed only as an attempt by the employer to discourage employees from coming forward and utilizing the employer's remedial process in the first place."

The court rejected the agency's claims that the documents were protected by a public policy of confidentiality in discrimination cases and by the attorney-client privilege and work product doctrine. The court also refused to acknowledge a blanket privilege of "self-critical analysis," which would protect "deliberative and evaluative" parts of an employer's records. The court said judges should decide on a case-by-case basis whether individual documents are privileged.

Both Markowitz and Stark said plaintiff lawyers examining company records should look at how -- and how quickly -- an investigation was conducted. Key points include whom the investigators interviewed, whether they asked open-ended or leading questions, whether they tried to corroborate the harassed worker's allegations, and whether the investigator was outside the alleged harasser's chain of command.

Ample resources are available to help employers conduct effective investigations, Markowitz said. "There's no reason why a company can't if it wants to, get training for its people for both prevention and investigation of these incidents."