New Jersey Supreme Court Adopts Affirmative Defense Under Federal Law To Claims Of Supervisory Harassment Under State Law

On February 11, 2015, the New Jersey Supreme Court decided Aguas v. New Jersey and established that New Jersey employers have an affirmative defense to claims of vicarious liability for supervisory harassment arising under the Law Against Discrimination (LAD). The court's ruling in Aguas underscores the importance of having meaningful and effective anti-harassment policies and procedures in place. The court's decision also clarifies how to determine who is a supervisor for purposes of harassment claims under the LAD.

For the first time since the United States Supreme Court's 1998 decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998); and Burlington Industries v. Ellerth, 524 U.S. 742 (1998), the New Jersey Supreme Court adopted the analytical framework established in Faragher/Ellerth and applied it to a claim of supervisory harassment under the LAD. In Aguas, the New Jersey Supreme Court held that where no tangible employment action has been taken against the employee asserting a hostile work environment claim under the LAD, an employer has an affirmative defense to vicarious liability where the employer can prove: (1) that the employer exercised reasonable care to prevent and correct promptly sexually harassing behavior; and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or failed to otherwise avoid the alleged harm. The court noted that its adoption of the long-standing affirmative defense recognized under federal law is consistent with legislative goals of the LAD and the court's prior jurisprudence.1 The Aguas decision emphasizes now, more than ever, the significance of an effective anti-harassment policy to the defense of workplace harassment claims.

Notably, the New Jersey Supreme Court in Aguas defined the term "supervisor" for the purposes of a hostile work environment claim under the LAD. Rejecting the more restrictive definition of "supervisor" adopted by the United States Supreme Court in Vance v. Ball State University, 133 S. Ct. 2434 (2013), the court adopted the more expansive definition of supervisor established by the Equal Employment Opportunity Commission (EEOC). In Vance, the U.S. Supreme Court defined a "supervisor" as an individual who has the authority to take tangible employment action against an employee (i.e., to effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment...