Anti-Harassment Policy a Defense to Supervisory Sexual Harassment Claim
Defense Law Articles
By: Thomas Paschos, Esq.
Thomas Paschos & Associates, P.C.
Haddonfield, New Jersey
In Aguas v. State of New Jersey, 2015 N.J. LEXIS 131 (Feb. 11, 2015), Ms. Aguas was a corrections officer who alleged serious sexual harassment by two of her male supervisors at the New Jersey Department of Corrections (DOC) facility where they worked. While the DOC had a written anti-discrimination policy and provided training to its employees, Ms. Aguas did not file a written complaint but rather she informally reported the harassment in conjunction with another work issue. The corrections facility conducted a full investigation and concluded the allegations could not be substantiated. Although Ms. Aguas could appeal the investigation findings, she never did and instead filed suit against the DOC under the New Jersey Law Against Discrimination (NJLAD).
The trial court granted summary judgment to the state, holding that although Aguas presented a prima facie showing of sexual harassment and a hostile work environment, the state established an affirmative defense that the DOC's policy provided a legitimate complaint procedure that Aguas failed to take steps required by the policy. An Appellate Division panel affirmed the trial court's grant of summary judgment, agreeing that the state had established an affirmative defense.
The New Jersey Supreme Court granted certiorari to consider the impact of an employer’s anti-harassment policy on an employee’s claims for negligence or recklessness and for vicarious liability. Upon review, the New Jersey Supreme Court confirmed that the scope and legitimacy of DOC's anti-harassment policy must be central to the determination of Aguas' claims for liability under the LAD and applied this finding to claims brought under both theories of negligence/recklessness and of vicarious liability for supervisory harassment. The Court adopted as the governing standard the test set forth by the United States Supreme Court in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, namely: The employer in a hostile work environment sexual harassment case may assert as an affirmative defense that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise, provided that the employer has not taken an adverse tangible employment action against the plaintiff employee.
The Court, therefore, concluded that the state may avoid vicarious liability under the LAD by demonstrating by a preponderance of the evidence that the DOC exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that Aguas unreasonably failed to take advantage of any preventive or corrective opportunities provided by the DOC, or to otherwise avoid harm.
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