New Jersey Employers May Defeat Sexual Harassment Claims With Sound Policies

Author: Michael Cardman, XpertHR Legal Editor

February 17, 2015

A new standard adopted by New Jersey's highest court can help an employer avoid liability for a supervisor's sexual harassment if it has established and properly implemented an anti-harassment policy.

Exercising reasonable care to prevent and promptly correct any sexual harassment makes it possible for an employer to establish an affirmative defense to claims that it is liable for a supervisor's harassment under the New Jersey Law Against Discrimination, the New Jersey Supreme Court held in Aguas v. State, 2015 N.J. LEXIS 131 (N.J. Feb. 11, 2015).

If an employer has taken such steps and the harassed employee unreasonably fails to take advantage of any preventive or corrective opportunities or to otherwise avoid harm, the employer cannot be held liable for a supervisor's harassment (unless it fired, demoted or took another adverse employment action against the employee).

In the Aguas case, a corrections officer for the New Jersey Department of Corrections (DOC) named Ilga Aguas claimed she was harassed by her supervisor. However, she did not file a written complaint, as the DOC's discrimination policy encouraged employees to do.

Because the DOC had instituted a policy against discrimination, harassment and retaliation; and had launched a "thorough investigation" into Aguas's complaint and took "prompt and remedial action," the court ruled in favor of the DOC.

The Aguas ruling brings New Jersey's standard for establishing an employer's liability for its supervisors' sexual harassment in line with the so-called Faragher-Ellerth standard set 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.

But not just any old anti-harassment policy will do. Those that fail to provide "meaningful and effective policies and procedures for employees to use in response to harassment" or that "exist in name only" will not shield an employer from liability. Nor does a policy allow employers to "empower sexually harassing employees who take tangible employment actions against their victims," the court noted.