M&W Case Alert – NJ Supreme Court Adopts Federal Law’s Affirmative Defense to Sexual Harassment Claims


On Wednesday the New Jersey Supreme Court ruled 5-2 in Aguas v. State of New Jersey that a defendant employer in a case under the New Jersey Law Against Discrimination may avoid liability for a hostile work environment created by a supervisor when the victim failed to invoke the protections of an effective anti-discrimination policy.

The Supreme Court essentially adopted the federal “Ellerth/Faragher” standard to hold that the employer in a sexual harassment case, when faced with potential vicarious liability based upon a supervisor’s harassment, may assert an affirmative defense if it can prove that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that the “plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” The Court also reaffirmed the notion discussed in the seminal case of Lehmann v. Toys ‘R’ Us that an employer’s implementation and enforcement of an effective anti-harassment policy, or its failure to maintain such a policy, is a critical factor in determining negligence and recklessness claims against the employer. Lastly, the Court adopted a broad definition of the term “supervisor,” holding that a supervisor is: (1) one who is authorized to undertake tangible employment decisions affecting the plaintiff; or (2) one who is authorized by the employer to direct the day-to-day work activities.

The plaintiff in Aguas, a corrections officer, asserted that she was subjected to a hostile work environment based upon her gender and that the State retaliated against her because of her objections to the harassment. The DOC had implemented a written policy prohibiting discrimination, outlined procedures for reporting and investigating such conduct, and mandated that all employees be trained. Plaintiff acknowledged having received a copy of the policy and in fact had previously filed written complaints against two female co-workers. However, Plaintiff only verbally reported the harassment she allegedly endured and refused to submit a written complaint. Notwithstanding this, the DOC initiated an investigation, interviewed 20 witnesses, and ultimately concluded that the allegations were unsubstantiated. Plaintiff filed suit two days after receiving the determination.

The DOC’s affirmative defenses included its exercise of “prompt and remedial action,” its policy against discrimination, harassment, and retaliation, and its “thorough investigation” of plaintiff’s complaint. The trial court granted summary judgment in favor of the DOC, finding that although Plaintiff established a hostile work environment claim, the DOC had established an affirmative defense – namely its policy requiring the submission of a written complaint. The trial court reasoned that plaintiff had failed to take the steps required by the policy. The Appellate Division agreed and plaintiff applied for Certification to the Supreme Court, which reversed and remanded for reconsideration of the employer’s affirmative defenses.

While previous case law touched upon these notions, the Supreme Court has now unequivocally stated that effective policies and remedial measures, as well as a plaintiff’s failure to take advantage of those policies, can serve as an affirmative defense for claims of vicarious liability against the employer based upon a supervisor’s sexually harassing conduct. The affirmative defense is not applicable in cases where a tangible employment action has been taken, such as a termination, or in cases that proceed directly against the employer on a theory of negligence.

This affirmative defense will be extremely beneficial in defending against claims brought by plaintiffs who fail to avail themselves of effective policies implemented by their employer to address claims of harassment even when a hostile work environment may have been found to exist. While the decision squarely addresses sexual harassment claims, the same arguments should be made when defending against other hostile work environment claims such as those based upon race, disability, religion or any other protected status.

A copy of the complete decision, including the Supreme Court syllabus, may be found here. As always, feel free to contact Eric Harrison of our Employment/Civil Rights Team with any questions about this important decision and its potential applicability to your claims.


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