The law pertaining to the discovery in sexual harassment and other discrimination cases expanded the scope of discovery that can be sought and discovered throughout the 1990s. In New Jersey, three key cases expanding the scope are Harding v. Dana Transport, Inc., 914 F. Supp. 1084 (D.N.J. 1996); Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997); and Connolly v. Burger King, 306 N.J. Super. 344 (App. Div. 1997). The Third Circuit followed this trend of permitting discovery and admissibility of evidence of other acts of discrimination. Aman v. Cort Furniture Rental, 85 F.3d 1074 (3d Cir. 1996); Glass v. Philadelphia Elec. Co., 34 F. 3d 188, 194 (3d Cir. 1994); Hurley v. The Atlantic City Police Dept., 1999 U.S. App. LEXIS 4582 (3d. Cir. March 18, 1999).

This powerful evidence can shift the momentum of a plaintiff’s case, increase pressure on defendants, and ultimately may convince a jury that a defendant harbors a discriminatory motive, not only against the plaintiff, but also against similarly situated employees. These cases have ruled that evidence of other discrimination in the workplace, as well as employers’ internal investigations of complaints of discrimination are discoverable because they are necessary to determine whether or not the employer’s practice and policies provide effective remedial measures to prevent future discrimination and to protect employees from further discrimination, harassment and retaliation.

New Jersey permits the discovery of investigations of not just the harasser’s claims, but of other employees’ claims of harassment. The efficacy of an employer’s harassment prevention and response (“remedial”) measures is highly relevant to both the employee’s claim against the employer and against the employer’s defense to liability. Effective remedial measures include the process by which the employer arrives at the sanctions that it imposes on alleged harassers. In Payton, the Supreme Court stated:

In short, a remedial scheme that reaches the correct result through a process that is unduly prolonged or that unnecessarily and unreasonably leaves the employee exposed to continued hostility in the workplace is an ineffective remedial scheme. Such a process, in reality, indirectly punishes employees with the temerity to complain about sexual harassment and cannot constitute “effective” remediation. 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. Payton v. New Jersey Turnpike Authority at 538-39.

The Appellate Division, in Connolly, clarified the scope of discovery permitted under Payton, reasoning that:

Moreover, the absence of effective responses to sexual harassment claims in general may foster an atmosphere of tolerance thereby contributing to a sexually hostile atmosphere and may constitute the willful indifference which is a predicate for the award of punitive damages. . . Finally, we note that the discovery may provide evidence that the employment of other complainants had been terminated, which may lead to probative evidence regarding plaintiff s contention that she was the victim of retaliatory discharge. Connolly v. Burger King at 349.

Any remedial measure that leaves the complainant worse off is ineffective per se. See Guess v. Bethlehem Steel Corp., 913 F. 2d 463, 465 (7th Cir. 1990). In Guess, the Circuit Court addressed a claim where the Plaintiff claimed that she was transferred because she complained of sexual harassment. The Court stated:

Guess argues that one of the corrective steps that Bethlehem took, even if effective, was improper: to transfer her rather than the foreman out of the department in which the incident occurred, in order to reduce the chances of a recurrence. She relies on a simple syllogism, which while we cannot find it in any previous case seems to state the law correctly: A remedial measure that makes the victim of sexual harassment worse off is ineffective per se. A transfer that reduces the victim’s wage or other remuneration, increases the disamenities of work, or impairs her prospects for promotion makes the victim worse off. Therefore such a transfer is an inadequate discharge of the employer’s duty of correction. Guess v. Bethlehem Steel Corp. at 465.

Discovery of the treatment of others that have complained may be extremely relevant and useful in determining whether the employer takes steps to prevent further discrimination without retaliating against the complainant or placing the complainant in a worse condition than he or she was prior to the complaint.

Schorr & Associates is very familiar with the laws regarding discovery in discrimination, harassment, and retaliation matters. Alan H. Schorr, Esquire was the attorney in Connolly v. Burger King and has been successful in expanding the scope of discovery for plaintiffs. If you believe you may be the victim of discrimination, harassment, ore retaliation in the workplace, call Schorr & Associates to see if we can assist you in resolving your matter.