On February 11, 2015, the New Jersey Supreme Court rendered the decision in Aguas v. State of New Jersey, _N.J._, No. 072467 (2015), in which the Court addressed two significant issues that frequently arise in hostile work environment sexual harassment claims: (1) what impact does an employer’s anti-harassment policy have on such claims, and (2) what is the definition of a “supervisor” in these cases? While the Court’s lengthy decision provides a history of the law on sexual harassment at both the New Jersey and the federal level, there is really only one significant take away for employers. An employer who fails to implement a detailed anti-harassment policy, reinforced through employee training and constant endorsement from upper management, will have no defense when confronted with a hostile work environment sexual harassment claim.
The facts of Aguas are typical of many harassment cases. The plaintiff was employed as a corrections officer by the State Department of Corrections (“DOC”). She claimed that she was sexually harassed by her supervisor on several occasions, by subjecting her to inappropriate comments and unwanted physical contact. Plaintiff made a verbal complaint about the conduct, and a subsequent investigation concluded that her allegations were unsubstantiated. Plaintiff then filed suit in the New Jersey Superior Court.
The DOC’s policy prohibiting discrimination in the workplace set forth detailed procedures for the reporting and investigating of incidents of harassment. The policy required that complaints be in writing, which the plaintiff had failed to do. The policy mandated training for all employees and encouraged the prompt reporting of harassment claims. At both the trial level and on appeal, the courts found in favor of the DOC, holding that its detailed policy on harassment and its prompt and thorough investigation of plaintiff’s claims, provided an affirmative defense to these claims. The New Jersey Supreme Court reversed, and the case was sent back to the trial court for further review under the following principles.
The plaintiff’s claims in Aguas were based on two theories. She asserted that the DOC was negligent in failing to prevent the harassment, and that the DOC was vicariously liable for the harassment committed by her supervisor. Addressing the negligence claim, the Court noted that the DOC’s anti-harassment policy was central to determining this issue. In analyzing a negligence claim, a court must look to determine the existence of the following five factors:
(1) formal policies prohibiting harassment in the workplace; (2) complaint structures for employees’ use, both formal and informal in nature; (3) anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization; (4) the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.
The Court noted that “the existence of effective preventative mechanisms may provide evidence of due care on the part of the employer,” and that the “efficacy of an employer’s remedial program is highly pertinent to an employer’s defense” against a negligence claim.
As to whether an affirmative defense is available to employers facing a claim that they are vicariously liable to an employee for harassment at the hands of a supervisor, the Aguas Court responded in the affirmative and adopted the reasoning of the United States Supreme Court decisions in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). (These cases first set forth the standard for employers asserting an affirmative defense to claims alleging vicarious liability forsupervisory sexual harassment.) This defense is only available when the supervisor’s harassment does not result in a tangible employment action such as discharge, demotion or an undesirable reassignment. However, where there is no tangible employment action taken, an employer may assert the 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.”
The Court reemphasized the importance of an effective anti-harassment policy to the defense of a vicarious liability claim and noted that the “prospect of an affirmative defense in litigation is a powerful incentive for an employer to unequivocally warn its workforce that sexual harassment will not be tolerated, to provide consistent training, and to strictly enforce its policy.” The Court cited Ellerth/Faragher in this regard, noting:
The most important tool in the prevention of sexual harassment is the education of both employees and employers. Consensus among employees and employers should be the goal.
We think that providing employers with the incentive not only to provide voluntary compliance programs but also to insist on the effective enforcement of their programs will do much to ensure that hostile work environment discrimination claims disappear from the workplace and the courts.
As to the question of who is a “supervisor” for purposes of harassment claims, the Court adopted an expansive definition which includes both those individuals who are authorized to undertake tangible employment decisions (the ability to hire, fire, discipline, etc.) as well as those who are authorized to direct the day-to-day activities of other employees. This more expansive definition, in the Court’s view, “prompts employers to focus attention not only on an elite group of decision-makers at the pinnacle of the organization, but on all employees granted the authority to direct the day-to-day responsibilities of subordinates, and to ensure that those employees are carefully selected and thoroughly trained.”
The message to New Jersey employers from the Aguas Court is loud and clear. Employers must adopt meaningful anti-harassment policies which must be regularly communicated to employees through training and publication. The policies must by monitored for compliance, and enforcement of the policies must receive “unequivocal commitment from the top” levels of management. “In short, the affirmative defense provides no benefit to employers who empower sexually harassing employees who take tangible employment actions against their victims, employers who fail to implement effective anti-harassment policies and employers whose policies exist in name only.”
All employers are encouraged to be pro-active on this issue. Please email me at firstname.lastname@example.org, to review your current anti-harassment policy or set-up harassment training.