Supreme Court Of New Jersey Adopts Faragher/Ellerth Affirmative Defense

On February 11, 2015, the Supreme Court of New Jersey expressly adopted the test created by the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The Faragher/Ellerth defense provides an employer with an affirmative defense to vicarious liability for a supervisor's sexual harassment. In Aguas v. State, No. 072467, 2015 WL 659543, at *1 (N.J. Feb. 11, 2015), the New Jersey Supreme Court ruled, for the first time, that the Faragher/Ellerth affirmative defense was viable under New Jersey law. In reaching this decision, the New Jersey Supreme Court addressed two issues which it had not previously ruled upon: (i) the impact of an employer's anti-harassment policy for purposes of negligence, recklessness, or vicarious liability claims, and (ii) which factors trial courts should apply in determining if an employee will be considered a supervisor for a hostile work environment sexual harassment claim.

In addressing the first issue, the Court reaffirmed that an "effective anti-harassment policy, or [a] failure to maintain such a policy, is a critical factor in determining negligence and recklessness claims..." In connection with reaffirming that an effective anti-harassment policy is a critical factor to consider, the Court went one step further and expressly adopted the Faragher/Ellerth analysis for determining whether an employer will be held vicariously liable for a supervisor's sexual harassment. Under this analysis, an employer is provided with an affirmative defense to vicarious liability for hostile work environment sexual harassment claims if the employer can show: "[i] that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior [i.e., maintaining an effective anti-harassment policy and promptly investigating any such claims]; and [ii] 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 employer, however, may not raise the defense if the...