A recent decision by the New Jersey Supreme Court serves as a good reminder to employers across the country that it really is in their best interest to adopt and implement strong anti-harassment policies. In addition to the prospect of minimizing harassment in the workplace, which is a significant focus of EEOC enforcement efforts, implementing such policies may limit employers’ liability exposure.
In Aguas v. State of New Jersey, the New Jersey Supreme Court held that in sexual harassment cases brought under the applicable state law, employers can rely on an effective, enforced anti-harassment policy to assert an affirmative defense to vicarious liability for the alleged sexual harassment. In other words, employers in New Jersey may be able to avoid state law liability if they adopt and enforce policies against harassment. This, of course, is nothing new from a federal. Indeed, the Aguas Court adopted the United States Supreme Court test for determining vicarious liability for a supervisor’s sexual harassment from two 1998 decisions, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton.
Although the New Jersey Supreme Court’s recent decision to adopt the Ellerth and Faragher standard for vicarious liability under state law is not groundbreaking in the sense of addressing an issue of first impression, it serves as a timely reminder to employers that their anti-harassment policies, and the enforcement of those policies, matter. After all, liability for a supervisor’s sexual harassment may depend on it.
Aguas v. State of New Jersey, Case No. 072467 (NJ Sup. Ct.)