The opinion of the court was delivered by
SHEBELL, J.A.D.
In this appeal we are called on to determine whether the alleged unwelcome sexual conduct towards and harassment of this plaintiff by her male supervisor constituted sexual discrimination entitling her to compensatory and punitive damages. We must also decide whether the supervisor’s employer should also be held liable. The Law Division judge in a non-jury trial found that the supervisor’s liability was limited to a single non-consensual touching of plaintiff that constituted a battery. The judge awarded $5,000 in compensatory damages, but denied punitive damages “because there is no evidence that [the supervisor] acted with malice toward plaintiff.” The judge dismissed all claims against plaintiff’s employer. We reverse and remand.
On August 27, 1987, plaintiff, T.L., commenced a civil action in the Law Division against her former employer, Toys ‘R’ Us, Inc. (Toys ‘R’ Us), and Don Baylous, plaintiff’s supervisor. She alleged injuries and damages resulting from defendants’ violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e to 2000e-17. She also claimed tortious violations of her “body and person” as a result of alleged assaults and improper conduct in the workplace during her employment by Toys ‘R’ Us. She further alleged intentional interference by Baylous with her contractual relationship with Toys ‘R’ Us, and negligence in defendants’ conduct towards her while she was an employee. She asserted that sexual harassment perpetrated and condoned by the defendants caused her to suffer damages including loss of wages, pension benefits, anxiety, detriment to her health, medical expenses, humiliation, and pain and suffering, and also that she was required to expend attorneys’ fees, and costs of suit.
Plaintiff filed an amended complaint on March 23, 1988, wherein she deleted reference to her claims being based in part on Title VII. She filed a second amended complaint on August 25, 1989, adding Jeffrey Wells as a party defendant. Plaintiff alleged that, as supervisor of the Human Resources Department of Toys ‘R’ Us, Wells directed that plaintiff participate in a face-to-face encounter with defendant, Baylous, causing her lasting psychological harm. She asserted that Toys ‘R’ Us ratified Wells’ intentional and malicious wrongful acts all in violation of the LAD.
The trial, conducted over six days from June 6 through June 14, 1990, revealed that plaintiff began her employment with Toys ‘R’ Us in August 1981 as a file clerk in the Purchasing Department. Through various promotions she worked her way up to supervisory positions, including Data Entry Supervisor and then Purchase Order Management Supervisor. Plaintiff held this position in November 1985 when Baylous joined Toys ‘R’ Us as Director of Purchasing Administration. In that capacity Baylous supervised approximately thirty people, including plaintiff. Plaintiff received favorable evaluations and promotions under his supervision. She was promoted to Systems Analyst for the Purchasing Department in September of 1986, and was in close contact with Baylous on a daily basis, and at least once a week met with him in his office.
Plaintiff, then twenty-seven years of age, noticed what she considered to be offensive sexual conduct by Baylous directed against other female employees in December 1986. However, the first incident complained of as personally involving plaintiff occurred around January 21, 1987. She testified:
Don told me that I should show the order to Frank Pissani. And I remarked that I knew how upset Frank could get when his orders reject especially a three-hundred page Mattel order.
And Don said, well, just lean over his desk and show him your tits, implying that that way Frank couldn’t get upset at me.
When asked how she felt when he said this, she stated:
Well, I left the office and headed toward Frank, and all I kept thinking is how weird. That’s disgusting that that man would say that to me.
Plaintiff stated that she did not say anything to Baylous for using that kind of language, adding, “I never said anything to Don. I was afraid that I could lose my job.”
The next sexually offensive incident plaintiff allegedly witnessed was when she and two other female workers were in Baylous’ office, and he noticed that one of the women had worn a dress to work in the morning and changed into jeans after lunch. She stated that “Don put his hands on [the woman’s] waist and asked her if she had gone home for a quickie.” She explained “[h]e put his hands on her waist and kind of squeezed as he said it, and we all left the office.” Plaintiff testified that the woman did not say anything to Baylous.
Plaintiff related that the next incident she remembered, also apparently occurring in January 1987, was when she had a meeting with Baylous. She testified that after the meeting was concluded:
Don stood up walked around his desk and stood by the door. I rose and went to my right a little, and I noticed something out of the comer of my eye out of the window, and I said, what’s going on out there? At this, Don lifted the back of my shirt up over my shoulders. I know my bra strap was exposed, and said, give them a show. And I pulled my shirt down, ran out of the office crying, and I remember running to M.P.
Plaintiff indicated that although she saw scaffolding outside the window and assumed window washers were present, she failed to actually see anyone. Plaintiff worked until the end of the day, although she indicated that she was crying and quite upset. Plaintiff produced other witnesses who testified about her condition immediately following the incident. Plaintiff did not report the incident to any superior or manager at Toys ‘R’ Us.
The next occurrence was within a short time thereafter. Plaintiff and Baylous were discussing the fact that Baylous was going to get a new boss reputed to have a quick temper. Plaintiff recounted that she said: “[T]hat’s all we need, is somebody else with a quick temper, because that makes me nervous.” She asserted that Baylous replied: “[W]ell, just stick your tits out at him as if you’re brave and act as if you’re brave.” She described her reaction thus: “Once again, I just got upset, and I don’t remember anything except leaving the office.” Despite Baylous comments, plaintiff did not express her distaste, nor did she tell him to stop using that language, explaining: “I was really afraid of Don. I didn’t know what would happen if I said something.”
She further recounted that around the same time while in her cubicle she saw defendant squeezing a female co-employee’s knee. She remembered that the woman pushed his hand away, and that afterwards the woman told her that “she really hated for Don to touch her and especially there because she hated to be touched on the knee.”
On January 21, 1987, according to plaintiff’s testimony, she and a co-worker were with Baylous at a meeting, when he told plaintiff “[t]o write a memo to cover [her] ass, and then he added because you have such a cute little ass.” She said nothing to Baylous about the comment, but the following day plaintiff went to talk to Baylous’ immediate boss, Bill Frankfort, about the incident. Plaintiff was disappointed with the meeting, however, because Frankfort told her not to tell Howard Moore, the Executive Vice President in charge of Purchasing, as he was very straight-laced and a family man and “[h]e also told me to handle it myself.” Plaintiff remembered telling Frankfort that she would try, but she really did not think that she could because she had not been able to tell Baylous how she felt up to that time. On January 26, 1987, plaintiff wrote a letter to Frankfort concerning her complaints of sexual harassment. She handed the letter to him in an envelope that same day. However, it appears that Frankfort did not open the letter until after plaintiff left the employ of Toys ‘R’ Us in April 1987.
Plaintiff, on January 26,1987, received a call to report to Eric Jonas, Manager of Employee Relations for Toys ‘R’ Us. At the meeting, plaintiff and a female co-worker, who was present when plaintiff arrived, told Jonas “about the trouble we were having with Don.” Plaintiff stated, “I told him the specific incidents of what had happened with me with Don.” She stated, “we gave him a list of names of other women who had either themselves said something — you know, had come to us talking about Don also.” She recalled at trial approximately six or seven names that she had given to Jonas as women who were offended by Baylous’ touchings or remarks since the department Christmas party in 1986.
Plaintiff told Jonas that she did not want Baylous fired, but just “wanted it stopped.” Jonas informed plaintiff that the problem would be more difficult to handle because plaintiff did not want Baylous to know that she had complained. Jonas assured plaintiff, however, that “he could handle it by saying that someone had complained, and that should be enough to make him stop.” A few days later, plaintiff met Frankfort in the hall. He told her that Baylous had been spoken to. Plaintiff felt relieved and “figured, good, this is going to be the end of this and that’s it.”
Plaintiff testified that to her amazement around February 3 or 5,1987, she was in the office with Baylous having a meeting and
I wasn’t feeling very well. And I looked pretty horrible, and I had said to Don — he had asked me what was the matter. I said I feel like I’m going to pass out. If I pass out, would you kick me into the hall. Something to that effect. And he said—
He said if I passed out, he would take advantage of me.
Plaintiff said that she became upset because she thought if this man was spoken to “[w]hy is he saying this to me?” The next day plaintiff again went to see Jonas and told him of Baylous’ remark. She stated that Jonas told her to keep a journal of anything else that happened. She testified that she also told Jonas of a remark Baylous made to her female co-worker that the co-worker had a cute “rump” or “bump.” She testified that after her meeting with Jonas she was out sick for approximately one week but that her sister, who also worked at Toys ‘R’ Us, informed her that “Don came up behind her and rubbed her shoulders while she was on the phone.”
During the first week of March, 1987, plaintiff went to Frankfort to tell him that she did not believe that Baylous “had stopped.” Plaintiff again reported to Jonas on March 9 and informed him that she was still very uncomfortable because “I felt like if Don had been warned, why did he continue this, why did he make a comment about [co-worker] and why did he say he’d take advantage of me if I passed out.” She stated that Jonas told her that she was paranoid and “that it would be worse for me in another job____”
Plaintiff also told Jonas that her husband and father were very upset about how concerned she Was and had recommended that she resign. Jonas allegedly advised plaintiff not to resign until she received her bonus check. Jonas also offered to transfer her within the company. She informed Jonas that she did not feel she should have to be transferred because she worked hard in her department for the past six years and loved her job. She told him that she had not done anything, and, therefore, was not the one who should be transferred. Plaintiff pointed out to Jonas that another employee who had transferred had to wait a long time, and stated, “I don’t think that I could physically or emotionally stay in the department much longer.”
Plaintiff testified that on March 11,1987 she was standing in the data-entry office when Baylous walked down the hall, leaned over a low wall, and grabbed a female employee on the arm. She said the woman just pulled away, but “I remember it bothered me.” Then, “[t]he next day, Don grabbed me on the arm.” She recounted that later on in the afternoon she saw Don “put his hand on [a female employee’s] shoulders and squeezed, and then at the same time, let go of [her arm] and grabbed [another woman’s] arm and he was saying, oh, you’re not going home yet.” Plaintiff related that on March 27, 1987, she and Baylous were meeting with another supervisor, and Baylous began the meeting by saying “that the reason [he] and [the other woman] had colds was not because they had been cohorting or cohabitating____”
Plaintiff stated that on April 6 she went to Howard Moore, an Executive Vice-President of Toys ‘R’ Us, because she was upset that Jonas had called her paranoid and Frankfort was talking to others about her. She told Moore that she felt she “was being forced to leave the company.” She stated that she told him everything and that he was upset that this was going on without him knowing about it. She recounted that Moore attempted to contact defendant Jeffrey Wells, head of personnel, but that Wells was at a conference in Florida.
According to plaintiff’s testimony, she was called to the Personnel Department later that day to meet with Laurie Lambert. She proceeded to tell Lambert everything that had occurred. Lambert told her that she could have a transfer, but plaintiff again questioned “why should I have to transfer when I worked so hard for this job that I love after six years of being in this company?” On the morning of April 7, plaintiff gave two-weeks notice to Baylous that she was leaving. He wanted to know why she was leaving. Plaintiff told him it was for personal reasons because she wanted to leave peacefully without having to deal with him knowing it was her.
Later that afternoon plaintiff was summoned again to Lamberts office and was informed that Howard Moore had demanded an investigation and that “he thought [plaintiff] should confront [Baylous] with the problem.” Plaintiff was also told that she was summoned because Lambert wanted to offer her a transfer. The personnel employee in charge of transfers was also present in the room.
Plaintiff recounted that a few minutes later there was a knock on the door, and it was Baylous. She felt trapped and became very upset. She told Baylous everything that she had been complaining about “for this period of time from December until April of 87.” She testified: “[H]e apologized in the beginning. Then he started to deny things, but I do remember him saying that he would try to keep his hands in his pockets.” She said he denied the sweater incident, and she remembers him becoming more and more angry, and she became hysterical.
Plaintiff maintained in her testimony that she could not return to work after the confrontation. She declared “that they took a hostile work environment and made it even worse.” Plaintiff claimed that she felt she could not work at Toys ‘R’ Us anymore because of the confrontation forced upon her. Following her departure from Toys ‘R’ Us, plaintiff collected unemployment benefits despite the objection of her former employer. Plaintiff remained unemployed until February 1988, when she began to work for a business owned by her neighbor where she was the only employee.
Although plaintiff had no psychiatric care, she was sent to a psychologist by her attorney for evaluation in 1989. The psychologist diagnosed her condition as “a simple phobia” that could be cured through psychotherapy. He attributed her problem to conditions in the workplace that he concluded amounted to sexual harassment. The psychologist further explained that her “phobia” resulted not only from the direct involvement or touchings of plaintiff by Baylous, but also from her seeing similar events involving her co-workers. He testified:
It may not be that it was herself that was being touched and violated at that point, but after she experienced the personal invasion, after she was either touched or remarks were made against her, hearing about those remarks, hearing that they are continuing, seeing other people being touched, hearing about other people being touched, certainly contributes to the continued feeling of being uncomfortable in that atmosphere.
The psychologist related that the Personnel Department contributed to plaintiffs mental condition because it failed to effectively deal with the problem. The psychologist testified that “[i]n addition to the immediate threat that she felt from Mr. Baylous she felt the threat, she felt the let down, she felt the abandonment of the personnel department, of the personnel office, Mr. Jonas.” He opined that the experience of not being supported was an additional insult or second injury and that the confrontation with Baylous was another contributing factor. He acknowledged that plaintiff “is overly sensitive,” but asserted she is “[n]ot a hypersensitive person.”
Defendant, Baylous, testified that he never lifted plaintiffs sweater or told her to show her breasts to anyone either on that occasion or any other. He “admitted being a very touchy person” but only in a social and not in a sexual way.
Defendant, Toys ‘R’ Us, presented evidence that Jonas, following the January 26, 1987 meeting with plaintiff, discussed plaintiffs concerns with Baylous’ supervisor, Frankfort. Thereafter, Frankfort met with Baylous and advised him that an employee under his supervision had made allegations of sexual harassment; however, as requested, Frankfort did not identify plaintiff or reveal any of her specific allegations. Baylous told Frankfort that he had never been accused of sexual harassment, and no one had ever complained to him about his conduct. Baylous denied any sexual intent. Frankfort advised him that the complaint involved touching and to be more cautious in his physical contact with the employees he supervised. Jonas also spoke with Baylous and directed him to be careful in the way he approached people. Jonas also refrained from identifying plaintiff or any of her specific complaints. Plaintiff was thereafter advised that Baylous had been spoken to.
Jonas also informed the Director of Employee Relations of plaintiffs accusations against Baylous. In light of plaintiffs assertion that window washers had been outside of Baylous’ window during the alleged sweater-lifting incident, the director contacted the company’s building maintenance personnel to determine whether work had been done in or about January, 1987. He was advised that the exterior windows of Toys ‘R’ Us had not been washed during that time period. The director also contacted an outside company that performed window washing services for Toys ‘R’ Us. He was advised that no work had been undertaken on the exterior windows at that time of year. The director relayed his findings to Wells. Wells testified at trial that no scaffolding of any kind had been used on the exterior of the facility in question during the winter of 1986-1987.
Jonas also testified that after he spoke with plaintiff in January, 1987, he monitored Baylous’ interactions with coworkers by making unannounced visits to plaintiff’s department. In addition, he met with plaintiff and a number of other parties during February and March, 1987. Plaintiff met with Jonas on March 9, 1987 and stated that nothing had happened to her since the last time they had met. On March 30, 1987, plaintiff met with Jonas and again advised that Baylous had not touched her or said anything offensive to her since their previous meeting. She added, however, that she had a feeling that something was going to happen. Jonas replied that he thought she was “being paranoid,” but because of her concern, he offered a transfer to another department. Plaintiff suggested the possibility of transferring to the Accounts Payable Department and working for her former supervisor; however, she subsequently rejected all transfer offers.
Jonas also contacted at least four of the women who plaintiff identified as being able to corroborate her allegations. These women, according to Jonas, could not confirm that Baylous had done anything that they found inappropriate or objectionable.
Toys ‘R’ Us alleged that, following plaintiff’s departure, it continued its investigation, but that after reviewing all of the information obtained it was concluded that Baylous had not subjected plaintiff or any other employee at Toys ‘R’ Us to a sexually hostile work environment. Wells asserted he believed that Baylous had occasionally touched female co-workers in an asexual manner and had made a number of joking remarks, but he did not believe that Baylous had ever used the word “tits” in plaintiff’s presence, or had lifted her sweater.
In May, 1987, plaintiff’s counsel sent Toys ‘R’ Us a letter requesting an opportunity to discuss the circumstances surrounding plaintiff’s resignation. It replied to plaintiff’s counsel letters by twice offering to reinstate plaintiff to her former position, or to reemploy her in a comparable position in another department, with no loss of salary or benefits. These offers apparently were not conditioned on plaintiff discontinuing her legal proceedings against defendants. The company’s offers were rejected.
The trial judge, on September 6, 1990, issued a written opinion in which he acknowledged that “the validity of a plaintiff’s claim of sexual discrimination requires an extremely fact sensitive analysis.” He made what he described as “the following detailed factual statement”:
Plaintiff, [T.L.], commenced employment at Toys “R” Us, as a file clerk, in August of 1981. Prom 1981 through April of 1987, when plaintiff resigned from Toys “R” Us, plaintiff held numerous positions and received several promotions. In November of 1985, Toys “R” Us hired defendant, Mr. Baylous, as the Director of Purchasing Administration. In his capacity as Purchasing Administration Director, defendant, Baylous directly supervised the work of approximately 30 employees, including plaintiff. In September of 1986, defendant, Baylous promoted [T.L.] from Data Entry Supervisor to Systems Analyst.
On or about December 1986, plaintiff began feeling uncomfortable in the company of defendant, Baylous. Plaintiff alleges that while at a Christmas Party she saw Baylous touch a female employee, [D.A.], on the back. Also, plaintiff heard, during the same party, another female employee, [B.C.], tell Baylous to get his “F_ing” hands off of her. Plaintiff testified that these incidents made her “uncomfortable” in the presence of Baylous.
Plaintiff further testified that in January of 1987 she observed defendant, Baylous, grab the waist of a co-worker, [M.L.], and ask her if she went home for a “quickie” during her lunch break. Defendant, Baylous, did not recall the particular incident but explained that he had made comments to [M.L.] regarding going home for a “quickie” on various occasions. [M.L.] testified that she could not recall the particular incident plaintiff complained of but indicated that such an incident would not offend her. Another Toys “R” Us employee, [J.M.], corroborated plaintiff’s testimony and explained that she had observed the “quickie” incident.
During January and February of 1987, the relationship between plaintiff and defendant, Baylous, continued to deteriorate. Plaintiff alleges that during a meeting in Baylous’s office, in January of 1987, Baylous lifted the plaintiff’s sweater above her bra strap in front of window washers who were on scaffolding outside of Baylous’s office. Plaintiff testified that, as Baylous lifted her shirt, he said “give them (the window washers) a show”. None of the individuals who testified at trial observed the incident. However, some coworkers recalled seeing plaintiff upset and crying after the incident occurred. Defendant, Baylous, denied the entire event. The defendant, Jeffrey Wells, Toys “R” Us’ Vice President of Human Resources, and Richard Cudrin, the Director of Employee Relations at Toys “R” Us, testified that after investigating the situation they discovered that no window washers and no other scaffolding devices were employed by Toys “R” Us in January of 1987.
In addition to the previously mentioned incidents, plaintiff complains that defendant, Baylous, made various inappropriate comments to plaintiff and other female co-workers. On one occasion plaintiff alleges that Baylous told plaintiff she had a “cute little aPlaintiff further contends that she heard Baylous tell a co-worker that she had a cute “bump” or “rump”. Also, plaintiff complains that Baylous told her to handle difficult male employees by “showing them her t_ts”.
Plaintiff further testified that defendant, Baylous, offended her because he touched other female employees, as well as plaintiff, on the arms and the back. Also, plaintiff observed Baylous grab her sister’s shoulders. (Plaintiff’s sister was, at the time of the touching, a Toys “R” Us employee.)
Plaintiff testified that in January of 1987 she complained that she felt sexually harassed by defendant, Baylous. Plaintiff voiced her complaints to Eric Jonas, the Employee Relations Manager and on a separate occasion plaintiff spoke to William Frankfort, the Director of Merchandise Control and defendant Baylous’ immediate supervisor. Plaintiff insisted that no one tell Baylous that she complained about his behavior. Mr. Jonas testified that he investigated the allegations and found no violations of Toys “R” Us’ sexual harassment policy. Nevertheless, Mr. Frankfort spoke to Baylous and told him to be very careful about the manner in which he approached employees. Additionally, Mr. Jonas’ testimony indicates that, in March of 1987, Mr. Jonas offered plaintiff a transfer from her department to a comparable position in another department with no change in salary or benefits. Plaintiff declined the offer.
On or about April 6, 1987 plaintiff informed Howard Moore, Executive Vice President, that she intended to resign and give the company two weeks notice. Mr. Moore contacted defendant Wells, who in turn, contacted Ms. Lambert, the Manager of Recruitment and Placement. Ms. Lambert interviewed the plaintiff to further ascertain exactly what plaintiff’s complaints were. Ms. Lambert offered plaintiff, for the second time, a transfer from her department to a comparable position in another department with no loss of salary or benefits. Again, plaintiff rejected the offer.
On April 7, 1987, pursuant to Mr. Well’s direction, Ms. Lambert arranged a meeting between defendant, Baylous, plaintiff and Ms. Lambert. During the meeting plaintiff confronted defendant, Baylous, for the first time, with the allegations that Baylous sexually harassed plaintiff. Baylous denied the allegations, apologized to plaintiff for any misunderstanding and attempted to convince plaintiff not to resign. After the meeting, plaintiff left Toys “R” Us and called Ms. Lambert on April 10, 1987 to advise that she would not return to Toys “R” Us to complete her last two weeks.
Following his “factual statement,” the Law Division judge discussed the law which he felt was applicable to claims of sexual harassment. He thereafter concluded, in pertinent part, as follows:
In the case at bar, plaintiff has not proffered enough evidence to show that defendant, Baylous, acted intentionally to harass plaintiff because she was a woman. Additionally, plaintiff has not proven that the discrimination was pervasive and regular. The complained of conduct creates a hostile work environment when it is repeated to the point where it is routine and becomes a condition of employment. [Citation omitted].
Assuming that all incidents plaintiff and plaintiff’s witnesses testified to occurred, Baylous’ actions, although annoying, were not sufficiently outrageous to sustain plaintiff’s allegations. A review of the record indicates that Baylous touched plaintiff and other employees in an asexual manner on a number of occasions. This type of touching does not amount to sexual harassment or discrimination. Baylous made several rude and off color comments to plaintiff and other employees. Off color remarks are insufficient to create a sexually hostile work environment. [Citation omitted]. Also, the evidence does not indicate that Baylous vulgarity affected the totality of the work environment. On the contrary, several witnesses testified that Baylous’ actions did not offend them. Baylous’ behavior with regard to the sweater-lifting incident was improper and child-like. However, the sweater-lifting incident combined with rude comments and occasional asexual touchings does not amount to a sexually hostile environment.
An important factor in this Court’s determination is the amount of time over which the alleged acts of harassment occurred____ Thus, this Court finds that the conduct plaintiff complained of did not occur regularly over a sufficiently lengthy period of time to become a “condition” of plaintiffs employment.
The judge further found that, although Baylous’ conduct adversely affected plaintiff, it would not have affected a reasonable person of the same sex in plaintiff’s position. He concluded that Baylous’ conduct did not create an impermissible hostile working environment, and, therefore, there was no sexual discrimination in violation of the LAD.
Having determined that Baylous’ conduct did not constitute sexual harassment, the judge concluded that Toys ‘R’ Us could not be in violation of the LAD either on a respondeat superior theory or because of improper investigation of the charges. He observed, nonetheless, that “[i]t appears from the testimony, that Toys “R” Us employees, in charge of investigating the matter, did not properly and thoroughly attend to plaintiff’s allegations, thus exacerbating plaintiff’s problems.”
The judge dismissed all claims against defendant, Wells, because the proofs did not satisfy the requirements “for giving unreasonable publicity to one’s private life” citing Bisbee v. John C. Conover Agency, Inc., 186 N.J.Super. 335, 339, 452 A.2d 689 (App.Div.1982). He also found a lack of intent on Wells’ part to subject plaintiff to outrageous conduct or harm. The court rejected plaintiff’s allegations of tortious interference with contractual relations as to all defendants.
We conclude that a remand for further fact finding is unavoidable. The trial judge, although acknowledging that plaintiffs claim was extremely fact sensitive, failed to make sufficient factual findings to permit final disposition. The judge did not make an unequivocal determination as to whether Baylous, who specifically denied the sweater-lifting incident and denied making the sexually-oriented comments to plaintiff, did do those things. Rather, the judge rendered his opinion based on a hypothesis that “assum[ed] that all incidents plaintiff and plaintiffs witnesses testified to occurred____” We believe that the judge should have made specific factual findings and supported those findings with reasons and explanations.
We now turn to our analysis of the applicable law to be applied to the facts as the judge may find them to be on remand. Plaintiff did not claim that there was “quid pro quo” sexual harassment carried out against her. See Erickson v. Marsh & McLennan Co., 117 N.J. 539, 555-56, 569 A.2d 793 (1990). There was no claim that Baylous sought sexual favors in the workplace as a price for proper treatment of plaintiff. Plaintiff readily admitted that, to her knowledge, Baylous never sought sexual favors from any of his subordinates.
Rather, plaintiff complained that sexually-related offensive conduct resulted in the creation of a hostile work environment. Id. The following two provisions of the LAD provide the underlying statutory framework for plaintiff’s claims.
N.J.S.A. 10:5-4. Obtaining employment, accommodations and privileges without discrimination; civil right
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, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status or 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. 10:5-12. Unlawful employment practice or unlawful discrimination It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status or sex of any individual ... to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment____
We have looked to federal cases dealing with Title VII for assistance in interpreting the New Jersey Act, as our Supreme Court stated in Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 97, 570 A.2d 903 (1990) was appropriate. Id. (adopting “the Supreme Court’s analysis of unlawful discrimination claims brought under Title VII of the Civil Rights Act of 1964”); see Erickson, 117 N.J. at 551, 569 A.2d 793 (using Title VII analysis in a case involving a LAD claim charging gender discrimination due to a failure to promote); Goodman v. London Metals Exch., 86 N.J. 19, 429 A.2d 341 (1981) (applying Title VII analysis to a LAD claim in which sex discrimination was alleged when employer refused to hire plaintiff).
Although no New Jersey case has specifically addressed the issue of sex discrimination as it pertains to non quid pro quo sexual harassment, we are convinced that when a supervisor makes unwelcome offensive remarks or physical contact with a subordinate employee that would not otherwise have been made, but for the sex of the subordinate, such conduct discriminates on the basis of sex. In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), it was held “that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Id. at 66, 106 S.Ct. at 2405, 91 L.Ed.2d at 59; see Erickson, 117 N.J. at 555-56, 569 A.2d 793.
Sexual harassment has been held to result in a hostile work environment when the offensive conduct was either “severe or pervasive,” or “pervasive and regular.” Ellison v. Brady, 924 F.2d 872, 876, 878 (9th Cir.1991); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990). We would not necessarily preclude a claim of hostile work environment when a plaintiff proves only a single yet severe act of sexual discrimination. As noted by the Ninth Circuit in Ellison:
[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct. See King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 537 (7th Cir.1990) (“[although a single act can be enough, ... generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident.”) Accord Andrews, 895 F.2d at 1484; Carrero v. New York City Housing Authority, 890 F.2d 569, 578 (2d Cir.1989); EEOC Compliance Manual, § 615, ¶ 3112, C at 3243 (CCH 1988). For example, in Vance v. Southern Bell Telephone and Telegraph Co., 863 F.2d 1503, 1510 (11th Cir.1989), the court held that two incidents in which a noose was found hung over an employee’s work station were sufficiently severe to constitute a jury question on a racially hostile environment. [924 F.2d at 878].
In all cases, the evidence must demonstrate that the alleged perpetrator’s conduct was “unwelcome.” Meritor, 477 U.S. at 65, 106 S.Ct. at 2404, 91 L.Ed.2d at 58. See Ellison v. Brady, 924 F.2d at 875-76. Although we consider this to be an implicit requirement for conduct to constitute sexual harassment, we do not regard acquiescence or even consent of the victim to negate this element as a matter of law. The issue is one of fact, dependent on the surrounding circumstances. Meritor, 477 U.S. at 68-69, 106 S.Ct. at 2406-07, 91 L.Ed.2d at 60-61.
Here, in evaluating plaintiff’s claim, the trial judge applied the following five-part test set forth in Andrews:
(1) the employees suffered intentional discrimination because of their sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. [895 F.2d at 1482; (footnote omitted)].
Initially, we note that we do not agree with the trial judge’s application of the first prong of the Andrews test which provides: “[T]he employees suffered intentional discrimination because of their sex.” Id. The trial judge interpreted that prong to require that Baylous must have been shown to have “acted intentionally to harass plaintiff because she was a woman.” (Emphasis added).
We are satisfied that, so long as plaintiff can demonstrate that defendant’s offensive conduct was unwelcome, intentional, and sexually oriented to the extent that it would not have occurred but for the fact that plaintiff was a woman, it need not be shown that defendant intended to harass plaintiff. It may be that Baylous did not recognize that his conduct constituted sexual harassment or misconduct. We have no doubt that many actions that a reasonable woman would “find offensive are perceived by men to be harmless and innocent.” See Sexual Harassment Claims of Abusive Work Environment Under Title VII, 97 Harv.L.Rev. 1449, 1451 (1984).
See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988) (“A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a ‘great figure’ or ‘nice legs.’ The female subordinate, however, may find such comments offensive”); Yates [v. Avco Corp.[, 819 F.2d [630] at 637, n. 2 [1987] (“men and women are vulnerable in different ways and offended by different behavior”). See also Enrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 Yale L.J. 1177, 1207-1208 (1990) (men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object”); Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand.L.Rev. 1183, 1203 (1989) (the characteristically male view depicts sexual harassment as comparatively harmless amusement). [Ellison v. Brady, 924 F.2d 872, 878-79 (9th Cir.1991) ].
Baylous’ alleged remarks telling plaintiff to use and show off various parts of her female anatomy and his act of raising her sweater during one such encounter clearly would be in the nature of conduct carried out only because of plaintiff’s sex.
Further, the trial judge’s conclusion that plaintiff had not proven that the discrimination was “pervasive and regular” as required by the second prong of the Andrews test appears to be contrary to the record. See Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 484, 323 A.2d 495 (1974). The opinion of the trial judge notwithstanding, Baylous’ actions and comments towards the plaintiff, if found to have occurred, would not merely be annoying, but would appear to constitute sufficiently sexually outrageous and continuous conduct, covering a period of at least several weeks, to be classified as “pervasive and regular.” Andrews, 895 F.2d at 1482.
The United States Supreme Court in Meritor said that it is the conditions of the victim’s employment that are to be considered in determining whether the conduct is sufficiently “severe and pervasive” to create an abusive working environment. 477 U.S. at 67, 106 S.Ct. at 2405, 91 L.Ed.2d at 60. The following factors should be considered in making this determination:
(1) whether the conduct was verbal or physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual. [EEOC Compliance Manual (CCH) § 615, ¶ 3114, C at 3274 (1990)].
In Ellison, the court examined the issue of what constitutes the similar criteria of “severe and pervasive conduct” and stated:
It is the harasser’s conduct which must be pervasive or severe, not the alteration in the conditions of employment. Surely, employees need not endure sexual harassment until their psychological well-being is seriously affected to the extent that they suffer anxiety and debilitation. Accord, EEOC Policy Guidance on Sexual Harassment, 8 Fair Employment Practices Manual (BNA) 405:6681, 6690, n. 20 (March 19, 1990). Although an isolated epithet by itself fails to support a cause of action for a hostile environment, Title VIPs protection of employees from sex discrimination comes into play long before the point where victims of sexual harassment require psychiatric assistance.
Next, we believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. King, 898 F.2d at 537; EEOC Compliance Manual (CCH) § 615, ¶ 3112, C at 3242 (1988) (courts “should consider the victim’s perspective and not stereotyped notions of acceptable behavior.”) If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy. [Ellison, 924 F.2d at 878].
Viewed from plaintiff’s perspective, Baylous’ words and actions, if fully accepted by the trial judge as asserted by plaintiff, would appear to rise to the level of “regular and pervasive.”
The trial judge further concluded that Baylous’ acts, other than the sweater incident, could not reasonably be classified as being anything more than social touchings or contact that did not rise to the level of sexual harassment. We believe that the trial judge may have erroneously arrived at this conclusion by focusing separately on those additional touchings that occurred to plaintiff and other female employees that plaintiff testified to as causing her further concern. Those so- called social touchings or contact that the psychologist testified served to cause further anxiety to the plaintiff should not have been unduly focused on or used to detract from the serious nature of the sexually-oriented remarks and touchings that plaintiff asserted were perpetrated against her personally. Contrary to the trial judge’s assertion, we find no requirement under either Andrews or Ellison that “the evidence ... indicate that Baylous’ vulgarity affected the totality of the work environment.” 924 F.2d at 878. (“It is the harasser’s conduct which must be pervasive or severe, not the alteration in the conditions of employment.”)
After applying the third prong of the Andrews test, the trial judge found plaintiff to have been detrimentally affected by defendant’s conduct. Nonetheless, when applying the fourth prong, he concluded that “the evidence does not reveal that a reasonable person of the same sex in plaintiff’s position would also have been adversely affected.” See Andrews, 895 F.2d at 1482. Again, the trial judge unduly focused on the testimony concerning Baylous’ conduct towards others and not the conduct directly affecting plaintiff. He based his evaluation on the testimony of “several witnesses who testified during trial ... that although Baylous’ conduct was annoying, it did not offend or bother” them. On several occasions Baylous allegedly made remarks to plaintiff about using her breasts, on another occasion lifted her sweater and told her to let others see her breasts, and referred to her as having a “cute little ass.” Clearly, if the conduct that plaintiff claims Baylous directly engaged in towards her actually occurred, it would also have detrimentally affected a reasonable woman in that position. See Ellison, 924 F.2d at 879.
We now consider the vicarious liability of plaintiffs employer if Baylous conduct is found to have constituted sexual harassment. The trial judge, having determined that Baylous’ conduct did not amount to sexual harassment, concluded that Toys ‘R’ Us could not have violated the LAD on a respondeat superior theory. Although it is true that the fifth prong of the Andrews test requires “the existence of respondeat superior liability,” we believe it is unwise to premise employer liability under our LAD on the doctrine of respondeat superior when a supervisor sexually harasses a subordinate employee in the workplace.
To condition liability on a finding of respondeat superior would in many, if not most cases, preclude liability of the employer because the intentional acts of sexual harassment by the supervisory employee would likely be considered to be outside the scope of employment. See Restatement (Second) of Agency § 219(1) (1958). This is particularly true when, as here, the employer has adopted a comprehensive written policy prohibiting unwelcomed sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature such as uninvited touchings or sexually-related comments.
As is demonstrated in the present case, the subordinate employee may be severely inhibited from reporting a supervisor’s improper conduct because of fear of reprisal. One must recognize that it is the supervisor to whom an employee should be able to turn for protection against offensive conduct in the workplace. Viewing the workplace from the position of the employee, the supervisor is generally considered “the boss.” The supervisor is placed in that position by the principal. We do not think it is overly burdensome to hold the employer liable for the transgressions of a supervisor where the purpose of the imposition of the burden is to protect the worker from prohibited sexual discrimination.
The Legislature’s intention in enacting the LAD was to permit actions for compensatory and punitive damages to be used as a weapon to rid the workplace of sexual harassment. See N.J.S.A. 10:5-3. Our Legislature, after enumerating the harms caused by discrimination, specifically declared:
Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages. The Legislature intends that such damages be available to all persons protected by this act and that this act shall be liberally construed in combination with other protections available under the laws of this State. [Id. (emphasis supplied)]
The goal of the Legislature is furthered by the imposition of liability on an employer for those acts of sexual harassment by its supervisory employees on subordinate employees.
. As a practical matter, in many instances the supervisor would not be in a financial position to satisfy even a compensatory judgment where the damages are substantial. It is likely that the supervisor’s employment may be terminated when sexual harassment has been proved. The employer may be the only financially responsible or insurable party in these circumstances. If the employer is not held liable, a severely damaged subordinate employee could go uncompensated, contrary to the intent of the LAD.
The analysis undertaken in Ellison, 924 F.2d at 881-83, concerning “what remedial actions taken by employers can shield them from liability” for sexual harassment by co-workers is inapplicable to sexual harassment by a supervisor of a subordinate employee. Id. at 881. Cf. Meritor, 477 U.S. at 72, 106 S.Ct. at 2408, 91 L.Ed.2d at 63 (employers are not strictly liable for sexual harassment by supervisors under Title VII, reversing imposition of absolute liability by court of appeals in Vinson v. Taylor, 753 F.2d 141, reh’g denied en banc, 760 F.2d 1330 (D.C.Cir.1985)).
By imposing liability on the employer for sexual harassment by its supervisory employees there is greater incentive for the employer to not only educate all employees regarding the prevention of sexually-oriented conduct, but also strong reason to use all available resources to rid the workplace of such conduct. See id. Merely creating an affirmative duty on the employer to investigate and act against sexual harassment, see Ellison, 924 F.2d at 882; Harris v. International Paper Co., 765 F.Supp. 1509, 1516 (D.Me.), vacated in part, 765 F.Supp. 1529 (1991), provides insufficient protection against sexual harassment by supervisory employees. Further, the facts of this case tend to demonstrate that management may be less than capable of recognizing and remedying improper sexual conduct among its own.
We therefore hold that liability for compensatory damages, not punitive damages, under LAD will flow to the employer when the sexual harassment is carried out in the workplace by a supervisory employee on a subordinate to the extent required to constitute sexual discrimination. Thus, to recover compensatory damages for actual loss or damage from sexual harassment, there need not be a showing that the employer failed to conduct a sufficient investigation of the subordinate’s complaints of sexual harassment by a supervisor or that the employer failed to act properly to prevent the harm or condition in the workplace. Cf. Meritor, 477 U.S. at 72-73, 106 S.Ct. at 2408-09, 91 L.Ed.2d at 62-63; Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572, 576-77 (10th Cir.1990). We, however, do not mean to suggest that a plaintiff would be precluded from introducing evidence of the employer’s independent misconduct as a basis for establishing entitlement to additional damages.
Although the trial judge awarded plaintiff $5,000 compensatory damages against Baylous for a battery, the judge withheld an award of punitive damages “because there is no evidence that Baylous acted with malice towards plaintiff.” It is well-settled that punitive damages may be awarded in a battery action. See Tiberi v. Petrella, 60 N.J.Super. 513, 518, 159 A.2d 439 (App.Div.1960). In the usual setting malice may be presumed from the type of battery inflicted. Id. Here, however, the battery was of such a nature that there may not have been an intent to harm. Baylous’ remarks and acts may even have been done in jest. This, however, does not compel the conclusion that the court cannot find malice. Baylous’ alleged sexually-oriented act of raising his female subordinate’s sweater and telling her to give the others a show would be an obvious violation of her right to remain free from such a touching, and was in wanton disregard of her privacy and feelings. Id.
We expect on remand that the trial judge will make specific findings on the nature and extent of Baylous’ words and acts surrounding the alleged sweater incident. If the circumstances as alleged by plaintiff surrounding the sweater incident are found to be true, Baylous’ act should be considered an outrageous violation of the personal rights of a female subordinate. Despite the absence of the threat of physical safety to the victim found in the usual battery, the wanton disregard of plaintiffs personal rights and sensitivities alleged would, if believed, be sufficient to permit the award of exemplary damages. See Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49-51, 477 A.2d 1224 (1984) (extended discussion regarding award of punitive damages).
The observation of Judge Skillman, in his separate opinion, that the majority’s utilization of the Andrews test-framework results in a more rigid approach to the determination of when a hostile work environment and resultant sexual discrimination claim exists is well-taken. He also correctly observes that we have expended considerable effort to explain and reinterpret the various prongs of the Andrews test. This, however, is the manner in which new fields of law invariably are developed. See Muench v. Township of Haddon, 255 N.J.Super. 288, 298-299, 605 A.2d 242, 247-248 (App.Div.1992). It is the considered judgment of the majority that a more structured test is required at this juncture. Id.
Conversely, we deem it necessary to maintain a flexible position with regard to the awarding of compensatory damages. Each case must be considered on its own facts. We, the majority, are confident that existing principles of proximate cause and remedies are sufficient to properly balance the claimants’ need to be compensated for the many forms of injury and damage that may result from sexual harassment and the imposition of appropriate remedies, including damages, against the responsible party.
We affirm the trial judge’s dismissal of plaintiff’s claims against defendants, Jeffrey Wells and Toys ‘R’ Us, as alleged in the fifth count of plaintiff’s second amended complaint wherein she alleged that they invaded her privacy and acted unreasonably by arranging a meeting between Baylous and the plaintiff. We also affirm the judge’s dismissal of plaintiff’s claims of tortious interference with contractual relations and for intentional infliction of emotional distress. We affirm on those issues substantially for the reasons expressed by the trial judge in his written decision of September 6, 1990.
We remand to the Law Division for precise findings as to each alleged incident. The trial judge should then evaluate the totality of the evidence and determine whether a sexually-hostile work environment existed based on application of the standards we have outlined in this opinion.
We reverse the trial judge’s dismissal of plaintiff’s action under the LAD against Toys ‘R’ Us and Baylous. We remand for further fact finding and, if appropriate, the assessment of additional compensatory and punitive damages against Baylous and the award of only compensatory damages against Toys ‘R’ Us in conformance with this opinion.
There does not appear to have been significant consideration by the parties or the trial judge as to the appropriate items to be considered in an award of compensatory damages for sexual harassment of a worker. We invite attention to the several concurring opinions in Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099 (Fla.1989). The trial judge must also carefully evaluate whether the course of action plaintiff followed in resigning her position and incurring substantial loss of income was reasonably warranted by the harassment she allegedly suffered. This assessment is to be made against the background of the alternate placement offered to plaintiff and whether it would have been reasonable for her to have pursued alternatives to resignation.