On February 11, 2015, the New Jersey Supreme Court raised
the standards for plaintiffs in sexual harassment cases who are seeking to hold
their employers vicariously liable for a supervisor’s alleged harassing conduct.
In Aguas v. State of
New Jersey, the New Jersey Supreme Court held that, in supervisor
harassment cases where the supervisor’s alleged harassment has not culminated
in a tangible employment action, an employer may assert as an affirmative
defense:
(a) that the employer exercised
reasonable care to prevent and correct promptly any sexually harassing
behavior, and
(b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.
As the court explained, a “supervisor” in sexual
harassment cases includes any individual who was authorized to undertake
tangible employment decisions affecting the plaintiff employee or who was
authorized to direct the plaintiff employee’s day-to-day work activities.
The court specifically hinted to employers that this
affirmative defense is a powerful incentive for an employer to unequivocally warn its workforce that sexual
harassment will not be tolerated, to provide consistent workplace harassment prevention training, and to strictly enforce
its policy. The court warned, however,
that “an employer that implements an ineffective anti-harassment policy, or
fails to enforce its policy, may not assert the affirmative defense.”
Employers should take this opportunity to examine their anti-harassment
policies to ensure they are effective and specifically-tailored to their
workplace. Employers should also provide
workplace harassment prevention training to their supervisors and employees to make
sure every supervisor knows how to prevent and promptly correct sexually-harassing
behavior and to make sure every employee knows about the employer’s reporting
mechanisms.
Connell Foley has extensive experience in drafting
effective anti-harassment policies and conducting practical, cost-effective
workplace harassment prevention training.
Please feel free to contact our employment law attorneys for guidance on
drafting an effective anti-harassment policy for your workplace, training your workforce,
and enforcing your policy to ensure your business can take advantage of this new
affirmative defense.
