In a significant ruling making it more difficult for employers
to be held liable for workplace harassment under the New Jersey Law
Against Discrimination, the New Jersey Supreme Court recently
adopted the affirmative defense previously set forth by the United
States Supreme Court in two 1998 cases involving claims under
federal anti-discrimination law, Burlington Industries v.
Ellerth and Faragher v. Boca Raton.
Specifically, in Aguas v. State of New Jersey, the New
Jersey Supreme Court made clear that in the absence of a tangible
action taken against an employee (e.g., discipline or discharge),
employers may assert an affirmative defense to liability for
harassment claims. Such defense is available if the employer
exercised reasonable care in preventing and correcting any
harassment (e.g., implemented an effective anti-harassment policy
and conducted thorough investigations and training) and if
the plaintiff failed to take advantage of any preventive or
corrective opportunities provided by the employer or to otherwise
avoid harm (e.g., failed to timely complain, thus preventing the
employer from addressing the harassment).
In 1993, in Lehmann v. Toys 'R' Us, Inc., the New
Jersey Supreme Court had previously ruled that when a supervisor
acts beyond the scope of his employment by harassing an employee,
the employer will be liable if it contributed to the harm through
its negligence, intent or apparent authorization of the harassing
conduct, or if the supervisor was aided in the harassment by his/
her relationship with the employer.
In Aguas, Justice Patterson noted that adoption of the
Ellerth-Faragher defense would provide incentives for both
employers and employees to help accomplish the paramount objective
identified by the New Jersey Supreme Court in Lehmann --
the prevention of sexual harassment. Specifically, employers should
implement and enforce anti-harassment policies and provide training
on those policies, and employees should report harassment
internally, allowing their employers to take immediate action. Even
though the case addresses only sexual harassment claims, the same
affirmative defense would likely be available for other claims of
harassment, including but not limited to those based on race or
religion.
Given this decision, ensuring that supervisors and employees are
properly trained on anti-harassment policies and procedures becomes
much more important to avoid employer liability for workplace
harassment claims under New Jersey state law. The attorneys at Day
Pitney can assist in that effort. We frequently conduct training on
employment-related topics. For more information on training we
offer, please see our
Employment Training brochure.
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