Day Pitney remains committed to providing quality legal counsel, while protecting our clients and employees, and transforming our communities into more just, equal and equitable spaces. For more information, please visit our COVID-19 Resource Center | Racial Justice and Equity Task Force.
In a significant ruling making it more difficult for employers to be held liable for workplace harassment under the New Jersey Law Against Discrimination, the New Jersey Supreme Court recently adopted the affirmative defense previously set forth by the United States Supreme Court in two 1998 cases involving claims under federal anti-discrimination law, Burlington Industries v. Ellerth and Faragher v. Boca Raton.
Specifically, in Aguas v. State of New Jersey, the New Jersey Supreme Court made clear that in the absence of a tangible action taken against an employee (e.g., discipline or discharge), employers may assert an affirmative defense to liability for harassment claims. Such defense is available if the employer exercised reasonable care in preventing and correcting any harassment (e.g., implemented an effective anti-harassment policy and conducted thorough investigations and training) and if the plaintiff failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm (e.g., failed to timely complain, thus preventing the employer from addressing the harassment).
In 1993, in Lehmann v. Toys 'R' Us, Inc., the New Jersey Supreme Court had previously ruled that when a supervisor acts beyond the scope of his employment by harassing an employee, the employer will be liable if it contributed to the harm through its negligence, intent or apparent authorization of the harassing conduct, or if the supervisor was aided in the harassment by his/ her relationship with the employer.
In Aguas, Justice Patterson noted that adoption of the Ellerth-Faragher defense would provide incentives for both employers and employees to help accomplish the paramount objective identified by the New Jersey Supreme Court in Lehmann -- the prevention of sexual harassment. Specifically, employers should implement and enforce anti-harassment policies and provide training on those policies, and employees should report harassment internally, allowing their employers to take immediate action. Even though the case addresses only sexual harassment claims, the same affirmative defense would likely be available for other claims of harassment, including but not limited to those based on race or religion.
Given this decision, ensuring that supervisors and employees are properly trained on anti-harassment policies and procedures becomes much more important to avoid employer liability for workplace harassment claims under New Jersey state law. The attorneys at Day Pitney can assist in that effort. We frequently conduct training on employment-related topics. For more information on training we offer, please see our Employment Training brochure.
Day Pitney Attorneys Daniel Schwartz, Michael Lane and Lindsey Viscomi authored the article, "Don't Be Late Paying Terminated Employees in Massachusetts," for Law360 Employment Authority.
Day Pitney Employment and Labor attorneys Glenn Dowd and Lindsey Viscomi will be presenting "Critical HR Transactions," at the CBIA 2022 Human Resources Conference on March 17 at the Trumbull Marriott Shelton.
Employment and Labor attorneys Heather Weine Brochin, Michael T. Bissinger, Howard Fetner and Trisha Efiom co-authored the article, "Keeping Up With New York's New Employment Laws," published by Employment Benefit Plan Review.
Day Pitney Alert
Day Pitney Alert
Day Pitney Employment and Labor Partner Rachel Gonzalez was featured in the Diverse Lawyers Network newsletter for being a recipient of the Executive Women of New Jersey Salute to the Policy Makers Award.
Day Pitney Press Release
Employment and Labor Partner Glenn W. Dowd is quoted in the Hartford Business Journal article, "Many CT Businesses Breathe 'Sigh of Relief' After Federal Vaccine Mandate is Withdrawn."
Employment and Labor partner Glenn W. Dowd is quoted in the Hartford Business Journal article, "Small Business Anxieties Still Persist As CT's New Paid Leave Program Set To Debut Jan. 1."
Attorneys Kritika Bharadwaj, Benjamin E. Haglund, Theresa A. Kelly, Naju R. Lathia and Elizabeth J. Sher represented the firm at the South Asian Bar Association of New Jersey (SABA-NJ) 2021 Annual Gala on October 1 at The Marigold in Somerset, NJ.
This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.
This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.