In a landmark New Jersey employment law case, Aguas v. State of New Jersey, 220 N.J. 494 (2015), the New Jersey Supreme Court laid out an affirmative defense for employers in sexual harassment claims by employees. In Aguas, the Court adopted the “Faragher-Ellerth” affirmative defense standard in response to vicarious liability claims.
The Faragher-Ellerth defense was established by the United States Supreme Court in two cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
The Faragher-Ellerth defense is recognized as a defense against harassment claims under Title VII of the Civil Rights Act of 1964.
Because of Aguas, the burden is on New Jersey employers to put in place well-drafted and effective anti-harassment policies and procedures. In addition, the Aguas case makes clear that employees who believe they are the victims of harassment should follow the employer’s policy and procedures regarding workplace harassment. This would include promptly reporting allegations of harassment to the appropriate persons or department where they work.
However, the Faragher-Ellerth affirmative defense is only available, provided that the employer has not taken some type of tangible action, such as a suspension or termination, against the complaining employee.
Additionally, Aguas defines who qualifies as a “supervisor” for the purpose of imposing vicarious liability under the New Jersey Law Against Discrimination (LAD) on the employer. The Court held the allegedly harassing employee is the complainant’s supervisor if that employee had the authority to take or recommend tangible employment actions affecting the complaining employee.
Additionally, that employee would be considered the complainant’s supervisor if that employee had the authority to direct the complainant’s day-to-day activities in the workplace.
The Aguas case involved the sexual harassment of an employee by a supervisor. Therefore, the decision reassures employers that they may avail themselves of the Faragher-Ellerth affirmative defense even if the alleged harassment is committed by a supervisor.
However, to support the Faragher-Ellerth affirmative defense, the employer will have to show the employer maintained effective anti-harassment policies. Furthermore, the employer must show itencouraged employees to take prompt action against harassing supervisors in accordance with those policies.
This removes the possibility that employers can be held strictly liable for harassment by a supervisor.
One year later, the Supreme Court elaborated on the Aguas decision. In Griffin v. City of East Orange, 225 N.J. 400 (2016), the Court listed several critical factors to consider in analyzing a vicarious liability claim for sexual harassment, including:
The Burden is on Employers to Have Effective Anti-Harassment Policies and Procedures
To raise the Faragher-Ellerth affirmative defense, the employer must exercise reasonable care in preventing and correcting any harassment. For instance, did the employer put in place an effective anti-harassment policy, conduct, thorough investigations, and effective training?
In addition, the complainant must have 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 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 of preventing 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 has expanded and been applied to other claims of harassment, including but not limited to those based on race or religion.
Employers need to publish clear anti-harassment policies and procedures. They then must train supervisors and employees on those policies and procedures.
Lastly, employers must set up simple and clear reporting procedures for employees who are being harassed.
New Jersey Employment Attorneys Can Help Employers Protect Themselves
The import of Aguas for employers is clear: you need well-drafted and readily-available policies and procedures to prevent unlawful harassment of your employees. You then have to train your managers and employees in those policies and procedures.
Lastly, you must have a simple and clear method for employees to report instances of harassment to management.
Without meaningful anti-harassment policies and procedures in place, employers will face vicarious liability for the unlawful harassment of their employees (and possibly third parties, such as customers, vendors, etc.).
The New Jersey employment lawyers at Schiller, Pittenger & Galvin, P.C., are available to assist corporate employers with any employment law issues that they are facing.
We also assist corporate employers with compliance New Jersey employment law, harassment and other workplace issues. If you have questions or concerns regarding your company’ existing workplace harassment policies, contact the New Jersey employment lawyers at Schiller, Pittenger & Galvin, P.C., at 980-490-0444. You can email them here.