In a landmark decision that will have profound and beneficial effects on New Jersey employers, the New Jersey Supreme Court’s decision in Aguas v. State of New Jersey has adopted the two part analysis set forth by the US Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) when reviewing sexual harassment/hostile workplace claims. As a result, employers now, more than ever, may rely upon their anti-harassment policies as an affirmative defense to claims of negligence or vicarious liability brought by employees under New Jersey’s Law Against Discrimination.
As Justice Albin noted in the Aguas dissent, for 20 years, the New Jersey Supreme Court maintained that an employer is vicariously liable if a supervisor creates a hostile work environment through sexual harassment. Going forward, however, an employer may avoid liability if it is found the employer 1) exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) if an employee unreasonably fails to take advantage of any preventative or corrective opportunities provided by the employer, or fails to avoid harm otherwise.
This decision makes it clear that the first line of defense for any business against sexual harassment/hostile workplace claims will be the business’ anti-harassment policy. As a result, it is imperative that businesses have in place strong anti-harassment/discrimination policies, strictly enforce these policies and perform anti-harassment training. Small employers who do not want to incur the costs of creating an entire employee handbook can simply create a stand-alone, anti-harassment policy. For assistance in crafting a stand-alone policy, or for help in updating an existing employee handbook, please contact the GHC Labor & Employment Law Department.