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Ellerth/Faragher Officially Comes to New Jersey: State Supreme Court Recognizes Affirmative Defense to Hostile Environment Harassment Claims for Employers

On Feb. 11, 2015, in a landmark decision – its first specifically addressing workplace sexual harassment in more than a decade – the New Jersey Supreme Court in Aguas v. State of New Jersey adopted the U.S. Supreme Court's Ellerth/Faragher affirmative defense to vicarious liability hostile workplace harassment claims for employers who “exercised reasonable care to prevent and correct promptly” any harassing behavior where the plaintiff employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer” and no tangible employment action has been taken. Equally important, the Court also thoroughly addressed the definition of a “supervisor” in evaluating such claims. The Court’s decision in Aguas provides New Jersey employers a timely opportunity to assess their anti-harassment policies, procedures for responding to such claims as well as like measures that the Court suggests in its lengthy opinion.

Corrections Officer Alleged Sexual Harassment by Several Supervisors

Plaintiff Ilda Aguas, a New Jersey Department of Corrections (DOC) officer, alleged that two male supervisors engaged in various forms of sexual harassment. Plaintiff did not, however, contend that her employer had taken any tangible employment action against her. Plaintiff acknowledged receiving DOC’s anti-discrimination and harassment policy, which mandated training, although plaintiff denied receiving any training. The DOC’s policy also: encouraged prompt reporting and investigations of complaints; included a “prompt [and] thorough” internal investigation mechanism; imposed severe discipline for violations; and barred retaliation against complaining employees.

Court Adopts Ellerth/Faragher Affirmative Defense to Hostile Environment Harassment Claims

The Supreme Court, after a comprehensive analysis of both federal and state law, “expressly adopt[ed] the [U.S. Supreme Court’s] Ellerth/Faragher analysis [under Title VII] for supervisor sexual harassment cases in which a hostile work environment is claimed pursuant to the [New Jersey Law Against Discrimination], and no tangible employment action is taken.” In such cases, “the defendant employer has the burden to prove, by a preponderance of the evidence, both prongs of the affirmative defense: that the employer exercised reasonable care to prevent and to correct promptly sexually harassing behavior; and that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm.” In other words, in summary judgment and potential trial proceedings, an employer may avoid vicarious liability “by demonstrating by a preponderance of the evidence that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that [the complaining employee] unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.”

Court Embraces Broader Definition of “Supervisor”

The Court in Aguas also addressed the definition of a “supervisor” for purposes of sex (and other types of) harassment claims giving rise to an alleged hostile work climate. After again canvassing governing federal and state law, the Court rejected the U.S. Supreme Court’s “restrictive” definition set forth less than two years ago in Vance v. Ball State, 133 S. Ct. 2434, 2443 (2013), and instead adopted a broad view of the term. In an amorphous holding, the Court concluded: “We agree with the EEOC that the term ‘supervisor,’ defined more expansively to include not only employees granted the authority to make tangible employment decisions, but also those placed in charge of the complainant’s daily work activities[,]” accords with New Jersey’s LAD.

Key Takeaways

The New Jersey Supreme Court’s decision in Aguas encourages employers to undertake a thorough review of their anti-harassment policies and procedures for responding to such workplace complaints. On balance, Aguas makes it more challenging for plaintiffs in hostile work environment claims to succeed, provided they did not experience a tangible job action and the employer has effective, well-entrenched anti-harassment policies and training. To best take advantage of Aguas, employers should carefully consider the following proactive steps:

  1. Review current anti-harassment policies to ensure they: (a) are clear; (b) include detailed complaint procedures and provide explicit contact information for individuals (or at least departments) whom allegedly aggrieved employees can speak with; and (c) prohibit retaliation for policy violations.

  2. Issue these policies separately from handbooks and ensure every employee has acknowledged receipt.

  3. Issue these policies annually, for example through e-mail notification to all employees that the policies are available on the company intranet, and carefully document having done so.

  4. Post anti-harassment policies in conspicuous locations throughout the workplace, such as break-rooms and bulletin boards, and provide “gifts” such as paperweights, stress balls, etc., that include contact information for responsible individuals whom aggrieved employees may contact.

  5. Conduct regular anti-harassment training for all employees, requiring written (or like) acknowledgement of attendance.

  6. Review offer letters, job descriptions, performance appraisals, and similar form documents to clarify and sanitize verbiage suggesting “supervisory” roles where plainly unintended.

As the Court in Aguas largely followed federal law, all employers – not only those operating in New Jersey – are encouraged to follow these suggestions.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume V, Number 51


About this Author

Robert Bernstein, GreenbergTraurig Law Firm, Labor and Employment Litigation Attorney

Rob Bernstein focuses his practice on labor and employment exclusively for management, with an emphasis in litigation and counseling. With over 30 years of experience, Rob has represented many multinational and domestic corporations in a wide range of industries. His practice extends to numerous jurisdictions across the United States, involving most workplace issues, including class and collective actions, employee benefits and trade secret litigation.

Prior to joining the firm, Rob chaired the National Labor and Employment Department Steering...

Michael Slocum, Greenberg Traurig Law Firm, New Jersey, Labor and Employment, Litigation Attorney
Of Counsel

Michael J. Slocum focuses his practice on labor and employment law, including the defense of discrimination, retaliation, wrongful discharge and whistleblower claims. Michael has represented employers in a broad array of industries, including health care and life sciences, pharmaceutical, private security, and retail, and has experience defending against both individual employee claims and class actions.

Prior to joining the firm, Michael practiced in the litigation department of a national firm focused on labor and employment matters in the life sciences industry, where he served as Editor of that firm's "False Claims Act Quarterly." He has experience representing clients at the trial and appellate levels in state and federal courts, as well as before a variety of state and federal administrative agencies.

Michael served as Law Clerk to the Honorable Donald S. Coburn of the New Jersey Appellate Division before entering private practice.

Michael has written and spoken numerous times on a multitude of issues facing employers in diverse industries. In addition to many client alerts and online articles, Michael was a contributing author to "Avoiding Liability for Unconscious Bias and Subtle Discrimination" published in the New Jersey Law Journal in December 2008, as well as a chapter on the False Claims Act in the 2010 edition of "Health Law and Compliance Update."  Michael was a speaker at a September 2008 seminar "The New Jersey FCA: Perspectives and Insight," as well as the firm's May 2013 "Taking Care of Business: An Annual Update on Labor and Employment Law" seminar. 


  • Labor and employment litigation and counseling

  • Federal and state False Claims Acts

  • Whistleblower claims