In one of the most highly anticipated decisions of the court’s term, the New Jersey Supreme Court recently gave employers what for years has been hoped to be an affirmative defense to harassment claims based upon the preventive measures adopted by employers to eradicate harassment in the workplace. In Aguas v. State of New Jersey, A-35-13 (2015), the New Jersey Supreme Court finally adopted the same federal defense to vicarious liability harassment claims brought under the New Jersey Law Against Discrimination (“LAD”) as currently applies to federal Title VII law.
At issue in Aquas was whether the past preventive policies and investigatory actions taken by the state employer after being notified of certain allegations of sexual harassment against a pair of plaintiff’s supervisors acted as a bar to plaintiff’s suit for damages. The employer argued that, in situations where vicarious liability is alleged under the NJLAD and the employee has suffered no tangible workplace action, employers should be able to take advantage of the defense set forth by the United States Supreme Court in the cases of Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) that applies to harassment claims brought under Title VII. Under what has come to be known as the Faragher defense, where an employee unreasonably has failed to take advantage of any provided corrective or preventative opportunities made available by the employer to avoid possible harm, an employer can avoid vicarious liability on a hostile work environment claim if it exercised reasonable care to prevent and promptly correct the sexually harassing conduct. In Aguas, the state employer regularly conducted training of employees regarding its anti-harassment workplace policies and, similarly, when plaintiff raised her harassment issues, she was advised to use the available employer investigatory policies but failed to utilize such procedures. Moreover, even after plaintiff failed to pursue formal charges, the employer nonetheless still investigated the allegations and ultimately determined that there was no merit.
In a 5-2 decision, the Court adopted the Faragher affirmative defense to harassment claims that are premised upon vicarious liability theories under the NJLAD. The Court found that such a defense provided a fair and practical framework for evaluating claims of supervisor sexual harassment. Adoption of the defense likewise was determined to further the LAD’s express goal of eradicating discrimination and harassment in the workplace by providing encouragement to employers to adopt preventative measures to take advantage of a possible defense to liability.
If you are an employer who does not have an anti-harassment policy, or who has failed in the past to do anything to educate and train your employees about anti-harassment issues, now is the time to become more proactive to ensure that your company has the ability to potentially avail itself of the Faragher defense currently made applicable to NJLAD vicarious liability claims. Not only will such preventive measures provide a possible defense to liability, if needed, they will also hopefully foster the kind of harassment free workplace that eliminates the risk of such vicarious liability claims in the first place.