Aguas v. State of New Jersey, (A-35-13)(N.J. February 11, 2015)

Employers have affirmative defenses to hostile work environment claims created by supervisors.

The New Jersey Supreme Court recently held that an employer is not strictly liable for a supervisor’s alleged sexual harassment. The court held:

An 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.

Id. at 3.

This recent, paramount decision by the New Jersey Supreme Court has clarified the law in this state regarding an employer’s vicarious liability for the actions of its supervisors. Thus, even if a plaintiff demonstrates a prima facie case of sexual harassment by a supervisor, the employer may still avoid liability if the following three elements are met:

  1. Plaintiff did not suffer a tangible adverse employment action (i.e. termination, demotion);
  2. The employer implemented an effective anti-discrimination and harassment policy; and
  3. Plaintiff failed to avail herself of the protections afforded by the employer’s anti-discrimination and harassment policy.

Id.

Case Law Alerts, 2nd Quarter, April 2015

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