Off Duty Conduct May Subject Employer to Sexual Harassment Liability

Ferguson v. Deptford Twp., et al., No. 06-2112, 2008 WL 5401630 (D.N.J., December 22, 2008) (unpublished) – The plaintiff complained of sexual harassment by her co-worker – an offer of money for sex – while both were off duty. Shortly thereafter, the plaintiff was allegedly given reduced hours, and subjected to poor treatment by her co-workers and supervisors. 

Although the court ultimately granted summary judgment to defendants on all counts – finding the plaintiff’s evidence insufficient to establish that the conduct was sufficiently severe or pervasive – the court rejected the employer’s argument that an employer cannot be liable for an employee’s off-duty conduct.  Observing that conduct taking place outside of the workplace “has a tendency to permeate the workplace,” the court stated that the defendants in an appropriate case “may be liable as the harasser’s employer because[,] although the alleged harassment took place outside the workplace, it arose out of the harasser and [p]laintiff’s employment relationship.”

Note: This article was published in the February 2009 issue of the New Jersey eAuthority.