New Defense to Sexual Harassment Claims
Earlier this week, in Aguas v. State of New Jersey, the New Jersey Supreme Court provided employers a new defense to sexual harassment claims under the New Jersey Law Against Discrimination (“LAD”).
Specifically, the Court adopted a defense that previously applied only in federal cases. That defense is often referred to as the “Faragher/Ellerth defense,” from the two United States Supreme Court cases that initially adopted the defense under federal law: Faragher v. City of Boca Raton and Burlington Industries v. Ellerth.
To understand this defense it is important to understand two ways in which employers can be held liable for sexual harassment committed by one of their employees. One way is if the victim of the harassment proves the employer was negligent. This is usually accomplished by showing the employer did not have an anti-harassment policy, or that its policy was not effective.
A second way employers can be liable for harassment committed by their employees is called vicarious liability. Vicarious liability can be proved by showing the employer put the harasser in a position of authority. In other words, it holds employers responsible for harassment committed by their supervisors.
The Faragher/ Ellerth defense applies in limited circumstances. It applies only to the vicarious liability theory, not to the negligence theory described above. It also does not apply when the harassment led the victim of the harassment to experience a tangible employment action such as being fired, demoted, suspended, or forced to resign.
But when the Faragher/Ellerth defense does apply, it provides the employer a defense to liability. Specifically, under this this defense an employer cannot be held responsible for sexual harassment if it can prove:
- It “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”; and
- The victim of the harassment “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Broader Definition of “Supervisor”
The Aguas case is not all bad news for employees. It also expands the definition of a “supervisor” under the LAD.
In interpreting the primary federal anti-discrimination law, Title VII, the United States Supreme Court has ruled that a supervisor is someone who has the authority to make decisions regarding hiring, firing, promotions, demotions, discipline, compensation, or other tangible employment actions.
Fortunately, the New Jersey Supreme Court declined to apply this relatively narrow definition under the LAD. Instead, it defined supervisors not only to include individuals who have the authority to make tangible employment decisions, but also ones who have the authority to impact the employee’s day-to-day work, such as by giving out job assignments.
The Bottom Line
In light of the new defense to harassment claims created by the Aguas case, it is now even more important that employees who experience sexual harassment at work should complain to the company’s human resources department or someone else designated to receive complaints.
Of course, there are times when it is reasonable for an employee not to make an internal complaint about harassment, such as when the employee does not even know there is a policy, has been threatened with retaliation if she makes a complaint of harassment, or has evidence that the policy is not effective. However, failing to make a complaint can jeopardize a potential sexual harassment case.
In short, Aguas can leave employees in a difficult position. They can complain about harassment and risk that they will face retaliation, or they can choose not to complain and risk they will not be able to pursue a sexual harassment lawsuit. Accordingly, if you have experienced a hostile work environment at your job, we highly recommended that you consult with an experienced employment lawyer to help you decide if and how you should report the harassment you have experienced.