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Supreme Court of New Jersey issues holding on sexual harassment case

Court provides affirmative defense and defines supervisor in controversial case.

The Supreme Court of New Jersey recently heard a case questioning the liability of an employer for sexual harassment committed by a supervisor. The decision is gaining attention throughout legal and media outlets, with stories discussing the case in both The National Law Review, a legal news website designed for in-house counsel and executives, and which features stories about New Jersey that are found in the Star-Ledger, the Times of Trenton and the Associated Press. Those who oppose the decision argue that it provides protection to employers by toughening requirements for a successful sexual harassment case.

The case at issue

The case, Aguas v. State of New Jersey, involved a corrections officer who alleged that two of her supervisors subjected her to sexual harassment within the workplace. The employee alleged that a supervisor sexually harassed her over a span of six months by making inappropriate, sexual comments and with unwanted physical touching. The place of employment, the New Jersey Department of Corrections, had a written anti-discrimination and anti-harassment policy in place that encouraged employees to promptly report any instances of harassment. All employees are required to receive training about this policy.

Ultimately, the court applied an affirmative defense used by the United States Supreme Court. Essentially, this defense states the following:

[T]he employer in a hostile work environment sexual harassment case may assert as an affirmative defense to vicarious liability that it ‘exercised reasonable care to prevent and correct promptly any sexually harassing behavior,’ and ‘the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,’ provided that the employer has not taken an adverse tangible employment action against the plaintiff employee.

This defense has been available under federal anti-discrimination law since the above noted Supreme Court cases in 1998. It is referred to as the Faragher/Ellerth defense, after the two cases that led to its development.

The New Jersey Court also defined “supervisor,” a term not otherwise defined in the New Jersey Law Against Discrimination (LAD). According to the Court, the term refers to employees that have authority to “take or recommend tangible employment actions affecting the complaining employee, or to direct the complainant’s day-to-day activities in the workplace.”

Based on these points of clarification, the Court remanded the case back to the trial court for further proceedings.

Justice Anne Patterson, writing the opinion for the majority, noted that the law is intended to provide employers with incentive to have “effective anti-harassment policies” in place while also encouraging employees to “take prompt action against harassing supervisors in accordance with those policies.”

Impact of this case

This case makes it even more important to ensure that all necessary evidence is provided when moving forward with a harassment case, including documentation supporting the employee followed anti-harassment policies. As a result, those who are the victims of this form of discrimination are wise to seek the counsel of an experienced sexual harassment attorney.

Keywords: sexual harassment

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