Court Adopts New Test in Harassment Cases

Professionals strive to maintain safe and welcoming workplaces for employees and guests.  To further this goal, many firms have incorporated into their employment manuals anti-harassment policies and training.  Yet, despite such precautionary steps, an employer cannot guarantee an environment free of wrongdoers. In the unfortunate event of a claim, it is up to the court to determine whether an employer that took proactive measures to protect employees is nonetheless liable in employment related harassment claims.

This question was recently presented to the New Jersey Supreme Court in Aguas v. State of New Jersey.  The plaintiff in Aguas was hired by the Department of Corrections (DOC) as a corrections officer in 2004.  In 1999, the DOC instituted a written policy prohibiting discrimination in the workplace, and mandated that all employees be trained with respect to the policy.  The plaintiff was supervised by the highest-ranking supervisor during her shift, who oversaw the work of 60 employees.  The plaintiff alleged that the supervisor sexually harassed her on several occasions, and made inappropriate comments.  The plaintiff subsequently made an oral complaint of sexual harassment to the DOC, but after several weeks of investigation and multiple interviews, the DOC’s Equal Employment Division investigators concluded that the claims were unsubstantiated.

Two days after the EED commenced its investigation, the plaintiff filed a discrimination lawsuit alleging that she was subjected to a hostile work environment based on her gender, and that the State retaliated against her because of her objections to that harassment in violation of New Jersey’s anti-discrimination law.

In its answer, the State pled the affirmative defense that it had a policy against discrimination, harassment, and retaliation.  The trial court ruled that the plaintiff had presented a prima facie showing of sexual harassment, but that the State had established its affirmative defense of maintaining an anti-discrimination policy. The case was dismissed.

On appeal, the New Jersey Supreme Court held that an employer in a sexual harassment case may assert as an affirmative defense that it created and enforced an effective policy against sexual harassment where a claimant asserts vicarious liability for the actions of one of the employer’s supervisors.  Thus, an employer may avoid vicarious liability by demonstrating that it exercised reasonable care to prevent and correct any sexually harassing behavior and that the claimant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.  The Court cautioned, however, that the affirmative defense is not available to employers who implement an ineffectual anti-harassment policy, or who fail to enforce their policies.

The Court’s decision in Aguas makes clear that employers must develop and implement effective anti-discrimination and anti-harassment policies, and take steps to investigate and correct any claims of any improper behavior.  Employers that operate proper systems may escape liability if a claim does arise. On the other hand, employers who fail to take preventative action may be vulnerable to significant exposure.

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