Last week, the New Jersey Supreme Court in Aguas v. State of New Jersey, adopted the test set forth in two federal cases, namely, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, when reviewing sexual harassment claims under the New Jersey Law Against Discrimination (“LAD”). Prior to this landmark decision, the New Jersey Supreme Court maintained that an employer is vicariously liable if a supervisor creates a hostile work environment through sexual harassment. Now, under the Ellerth/Faragher analysis, the Court held that an employer may escape liability if it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and if an employee unreasonably failed to take advantage of any preemptive or corrective opportunities provided by the employer, or fails to avoid harm otherwise.
The Court also broadened the definition of a “supervisor” under the LAD. The Court defined supervisors as not only individuals who have the authority to make tangible employment decisions, but also those in charge of the employee’s daily work activities.
This decision will likely result in many employers using its anti-harassment policy as a defense to sexual harassment claims under the LAD. As such, it is important that victims of sexual harassment report their claims of sexual harassment in the workplace and consult an attorney.