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 Alert
Day Pitney Alert
Day Pitney Alert
Heather Weine Brochin and Gregory Tabakman authored an article entitled "Third Circuit Advises that Employer Must Pay Employees for Short Rest Breaks," which was published by the New Jersey Law Journal.
Day Pitney partner Francine Esposito will speak at the upcoming webinar "Workplace Leave Laws: Strategies to Navigate the Changing Landscape in the U.S." Taking place on Sept. 14 at 2 p.m., the webinar is the first in a series of webinars hosted by the Employment Law Alliance (ELA) on workplace leave laws around the globe.
John McLafferty was quoted in an article, "Employment Lawyers Leery of Bill Banning NDAs, Arbitration," published by Massachusetts Lawyers Weekly.
Heather Weine Brochin was quoted in an article, "Confidentiality Disqualifies Harassment Settlement Tax Deductions," published on the Society for Human Resource Management (SHRM) website.
John McLafferty was quoted in an article, "How Employers' Haunted House and Fright Night Went Way Wrong," published on the Society for Human Resource Management (SHRM) website.
Michael Furey was quoted in an article, "The Biggest New Jersey Cases of 2016," which was published in Law360.
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.