New Jersey Supreme Court Establishes Affirmative Defenses for Employers Accused of Sexual Harassment and Affirms the Importance


On February 11, 2015, the New Jersey Supreme Court raised the standards for plaintiffs in sexual harassment cases who are seeking to hold their employers vicariously liable for a supervisor’s alleged harassing conduct.

In Aguas v. State of New Jersey, the New Jersey Supreme Court held that, in supervisor harassment cases where the supervisor’s alleged harassment has not culminated in a tangible employment action, an employer may assert as an affirmative defense:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

As the court explained, a “supervisor” in sexual harassment cases includes any individual who was authorized to undertake tangible employment decisions affecting the plaintiff employee or who was authorized to direct the plaintiff employee’s day-to-day work activities.

The court specifically hinted to employers that this affirmative defense is a powerful incentive for an employer to unequivocally warn its workforce that sexual harassment will not be tolerated, to provide consistent workplace harassment prevention training, and to strictly enforce its policy.  The court warned, however, that “an employer that implements an ineffective anti-harassment policy, or fails to enforce its policy, may not assert the affirmative defense.”

Employers should take this opportunity to examine their anti-harassment policies to ensure they are effective and specifically-tailored to their workplace.  Employers should also provide workplace harassment prevention training to their supervisors and employees to make sure every supervisor knows how to prevent and promptly correct sexually-harassing behavior and to make sure every employee knows about the employer’s reporting mechanisms.

Connell Foley has extensive experience in drafting effective anti-harassment policies and conducting practical, cost-effective workplace harassment prevention training.  Please feel free to contact our employment law attorneys for guidance on drafting an effective anti-harassment policy for your workplace, training your workforce, and enforcing your policy to ensure your business can take advantage of this new affirmative defense.