The New Jersey Supreme Court recently adopted the two part analysis for reviewing hostile work environment sexual harassment claims set forth by the United States Supreme Court in two prior decisions (Burlington Industries v. Ellerth and Faragher v. City of Boca Raton).  This decision underscores the need for employers to implement and enforce effective and consistent anti-harassment policies.

   

 

The plaintiff, a female corrections officer with the New Jersey Department of Corrections (the "DOC"), alleged that she was sexually harassed by two of her male supervisors. At the time, the DOC had in place a written policy prohibiting discrimination and harassment in the workplace, which included a reporting mechanism. The plaintiff failed to file a written complaint as required by the policy, and instead verbally complained about the alleged conduct. After investigating the plaintiff's verbal complaint, the DOC determined that the allegations were unsubstantiated. The plaintiff subsequently initiated a lawsuit, asserting claims of negligence and vicarious liability against the DOC under the New Jersey Law Against Discrimination (the "NJLAD"). The trial court granted summary judgment for the DOC and the Appellate Division affirmed.

The NJ Supreme Court granted certiorari to consider two issues: 

1. The impact of an employer's anti-harassment policy on an employee's claim of negligence or recklessness, and for vicarious liability under the NJLAD.
2. The definition of a "supervisor" for purposes of a hostile work environment sexual harassment claim under the NJLAD.

 

As the New Jersey Supreme Court confirmed, an employer may assert an affirmative defense that it has "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and that "plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise," provided that the employer has not taken tangible employment action against the employee. The Court noted that the affirmative defense is unavailable to "an employer that implements an ineffective anti-harassment policy, or fails to enforce its policy."  

 

For purposes of claims based on sexual harassment giving rise to a hostile work environment under the NJLAD, the NJ Supreme Court expanded the definition of "supervisor" to include not only those with authority to make tangible employment decisions, but also those placed in charge of the complainant's daily work activities.