July 20, 2015 Top Story

Affirmative Defense Available in Hostile Environment Claims

Vicarious liability limited where employer has effective anti-harassment policy

Caitlin Haney

Employers with robust anti-harassment policies may now assert affirmative defenses in hostile work environment claims. In Aguas v. State of New Jersey, the New Jersey Supreme Court also expanded the definition of “supervisor” in vicarious liability claims to include employees with the authority to direct the plaintiff’s day-to-day activities, as well as employees authorized to make tangible employment decisions affecting an employee. The ruling clarifies two aspects of hostile environment claims unaddressed in the court’s Lehman v. Toys ‘R’ Us decision.

Plaintiff’s Sexual Harassment Claim

A female corrections officer, alleging she was sexually harassed on several occasions by two fellow employees beginning in October 2009, claimed that the State of New Jersey was vicariously liable for sexual harassment and a hostile work environment. The plaintiff based her claims entirely on a hostile working environment as defined by the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49.

The statute prohibits discrimination in employment based on race, creed, color, national origin, age, ancestry, nationality, marital or domestic partnership or civil union status, sex, gender identity or expression, disability, liability for military service, affectional or sexual orientation, and atypical cellular or blood trait. It disallows discrimination in hiring, promotion, transfer, demotion, termination, salary, benefits, harassment, and other employment-related benefits or issues. The plaintiff did not allege she experienced adverse employment actions.

In its response to the plaintiff’s claims, the state pled affirmative defenses based on its “prompt and remedial action” in its policy against discrimination, harassment, and retaliation, and its “thorough investigation” of the plaintiff’s complaint. The Superior Court of New Jersey granted the state’s motion for summary judgment despite the plaintiff’s prima facie showing of sexual harassment. The trial court held the Department of Corrections had an effective policy discouraging sexual harassment and the plaintiff failed to take appropriate steps under that policy. The Appellate Division affirmed the trial court’s grant of summary judgment.

Effective Sexual Harassment Policy Creates Affirmative Defense

The New Jersey Supreme Court reversed and remanded the case for further proceedings, holding that an employer’s implementation and enforcement of an effective anti-harassment policy, or its failure to maintain such a policy, is critical in determining negligence and recklessness in vicarious liability claims. In reaching its decision, the court expressly adopted the test set forth in Burlington Industries v. Ellerth and Faragher v. City of Boca Rotan, both U.S. Supreme Court decisions. Under these high court decisions, when no adverse tangible employment action against the plaintiff has occurred, employers may assert an affirmative defense that they exercised reasonable care to prevent sexual harassment and the plaintiff unreasonably failed to take advantage of any remedial opportunities provided by the employer.

Adopting the federal standard creates “consistency and simplicity in facilitating compliance” with sexual harassment deterrence policies, notes Harry A. Horwitz, Philadelphia, PA, cochair of the Labor and Employment Subcommittee of the ABA Section of Litigation’s Corporate Counsel Committee. Lawyers representing employers “seek clear and consistent guidelines in the law to help clients stay in compliance,” which is what court’s opinion provides, according to Horwitz. This decision is “good for employers all over the country,” agrees Charnanda T. Reid, Greensboro, N.C., chair of the Diversity Inclusion Subcommittee of the Section of Litigation’s Employment & Labor Relations Committee.”

Two Types of Supervisors in Hostile Environment Claims 

The New Jersey court expanded the definition of “supervisor” for vicarious liability to include individuals with the authority to direct another employee’s day-to-day work activities and to undertake tangible employment decisions affecting the employee.

This broadening of the term could benefit plaintiffs because “it increases the potential pool of employees whose actions can be imputed to employers through vicarious liability,” notes Reid. But the New Jersey Supreme Court reaching a different decision from the U.S. Supreme Court “makes compliance a little more difficult,” warns Horwitz.

Actions Critical to Availability of Affirmative Defense

Employers seeking to use this affirmative defense should “implement a comprehensive, written, anti-discrimination policy clearly setting forth the conduct prohibited, the obligations of the employer and its supervisors to ensure a workplace free of harassment and discrimination, the protocols for employee reporting of harassing or discriminatory behavior, the employer’s procedure and timeline for investigating such claims, and the remedial or disciplinary steps to be taken when a claim is found to be valid,” suggests Reid.

Additionally, employers should “not designate one person as the sole recipient of sexual harassment claims,” advises Horwitz. “Beyond having an effective anti-harassment policy”, employers should “promptly and thoroughly investigate claims, publicize the policy, offer periodic training to employees, including non-supervisors, and consistently enforce rules,” Horwitz suggests.

The scope of vicarious liability for employers will vary depending on the applicable law in the particular jurisdiction. “Ensure your anti-discrimination policy is compliant with both federal law and any applicable state law in each state in which you operate,” Reid suggests.


Caitlin Haney is an associate editor for Litigation News.

Keywords: sexual harassment, adverse actions, vicarious liability, supervisor, affirmative defense

Related Resources

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).