A recent decision out of the New Jersey Appellate Division highlights the potential pitfalls for employers when dating employees break-up, and provides an example of how a company can avoid liability for a sexual harassment claim that might follow.

Rafaela Fernandez worked in the bakery department of the Linden, New Jersey Pathmark in 1998 when she entered into a intimate relationship with Jesus Flores, who worked in the meat department of the same store. Fernandez ended the relationship a year later. Later, in July 1999, while Fernandez was leaving work in July 1999, Flores followed her to her car, slapped her in the face, and called her a ″bitch″. Fernandez reported the incident to store managers, who, after investigating the incident, warned Flores to stay away from Fernandez or he would be fired.

Five times over the next seventeen months, Flores confronted Fernandez both at and outside of work. Fernandez did not inform supervisors of these incidents. Then, in January of 2001, Flores spoke to Fernandez in the bakery department and grabbed her by her wrist.

Fernandez complained to supervisors, who transferred Flores to another Pathmark store a week later. Thereafter, Fernandez was diagnosed with posttraumatic stress disorder and major depressive disorder, and consequently was unable to continue working.

Fernandez sued Pathmark under the New Jersey Law Against Discrimination (“NJLAD”), alleging that it failed to adequately investigate and remedy Flores’ sexual harassment. Pathmark filed for summary judgment, arguing that (1) Flores’ actions were not the result of Fernandez’s gender; (2) Flores was not a supervisor; (3) Flores’ conduct was not severe or pervasive; and (4) Pathmark took appropriate action. The trial court granted Pathmark’s motion and the Appellate Division affirmed.

The Appellate Division based its decision on a number of factors. First, the court found that Flores’ conduct was motivated not by Fernandez’s gender but by the failure of their relationship, noting that his aggressive acts and abusive language were not gender specific. Second, the court found that the conduct was not so severe as to have altered Fernandez’s work environment since incidents of an aggressive nature were few in number.

Since Flores was not in management, Pathmark could only be vicariously liable if a manager negligently failed to prevent and correct any sexually harassing behavior. Fernandez claims that Pathmark’s warnings to Flores to stay away from were ineffective. But the court noted that Pathmark acted swiftly and appropriately in response to each of Fernandez’s complaints. In addition, the Court stressed Fernandez’s failure to take full advantage of Pathmark’s procedures for sexual harassment, namely her failure to report most of the allegedly harassing incidents.

This case highlights how a company can effectively handle a potentially harassing situation between two employees. Pathmark investigated each complaint and responded quickly. After the initial warning, Pathmark took steps to ensure that Flores would not be in contact with Fernandez while at work. While the appeals court held that Flores’ actions were not actionable under the NJLAD, it is very possible that Pathmark’s swift action forestalled even more egregious behavior on the part of Flores that could have exposed Pathmark to liability.