CLIENT ALERT
A Partial Victory for Employers in New Jersey
February 2015
Author: Robyn Silvermintz
One of the most pro-employee states appears to have cut employers a partial break this time.
New Jersey’s Law Against Discrimination (“LAD”) has been the bane of many New Jersey employers’
existence. Because the LAD provides greater relief than available under federal law, New Jersey plaintiffs
almost never file discrimination charges with the U.S. Equal Employment Opportunity Commission
(“EEOC”). Rather, in New Jersey it is common practice for plaintiff’s attorneys to file discrimination claims
in state court pursuant to the LAD and forego the right to bring a federal lawsuit.
However, in a surprising 5-2 decision, New Jersey’s Supreme Court ruled in Aguas v. State of New Jersey
that employers accused of a supervisory hostile work environment sexual harassment claim may avoid
liability if there is an anti-harassment policy in place, and the employee failed to take advantage of said
policy. Said defense only applies where no tangible employment action (fire, demote, failure to promote,
etc.) is taken against the employee.
The New Jersey Supreme Court reached its decision by adopting the U.S. Supreme Court test
from the decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742 (1998). These two cases have created what is now known as the FaragherEllerth defense. The Faragher-Ellerth defense has provided an affirmative defense to employers sued for
harassment under the federal discrimination statutes, provided employers implemented anti-harassment
policies that employees failed to take advantage of.
The Faragher-Ellerth decisions highlight the importance of employee manuals with clear antiharassment policies and procedures. In states where the majority of discrimination claims are filed
pursuant to federal law, the Faragher/Ellerth decisions were a victory for employers. However, in New
Jersey where the vast majority of discrimination claims are filed in state court, it was unclear if the
defense was available until now. With the New Jersey Supreme Court’s decision in Aguas, it is now clear
that the Faragher-Ellerth defense applies to LAD claims.
While adopting the U.S. Supreme Court’s Faragher-Ellerth standard, the New Jersey Supreme
Court did not adopt the U.S. Supreme Court’s definition of a “supervisor.” In Vance v. Ball State
University, 133 S. Ct. 2434 (2013), the high court defined “supervisor” for purposes of Title VII vicarious
liability as one who is empowered to take or suggest tangible employment actions. Rather than adopt
www.WSSLLP.com
NEW YORK
|
NEW JERSEY
|
CONNECTICUT |
FLORIDA
|
CALIFORNIA |
TEXAS
|
ILLINOIS
the definition of a “supervisor” set forth in Vance, the New Jersey Supreme Court adopted a more
expansive definition of “supervisor.” Thus, the definition of “supervisor” in New Jersey also includes
those who oversee an employee’s day-to-day work activity. The more expansive definition adopted by
the New Jersey Supreme Court follows the definition urged by the EEOC.
What does this all mean for New Jersey employers? By adopting the Faragher-Ellerth defense,
New Jersey employers should be encouraged to eliminate harassment in the workplace through clear
anti-harassment policies. While this may be seen as a loss to the New Jersey plaintiffs’ bar, it should
ultimately be a win for employees throughout the state. It is also a win for employers, because there is
now an opportunity to manage exposure to liability for workplace harassment. Thus, employers should
ensure they have anti-harassment policies and procedures in place that are known to all employees. The
best ways to educate employees regarding said policies and procedures is to have them clearly written in
employee handbooks that are distributed to all employees. For added protection, employers should go
one step further and conduct anti-harassment training for all employees, which includes an overview of
the employer’s anti-harassment policy and the procedure in place for making a harassment complaint.
Employers should also be sure to promptly follow its procedures when a harassment complaint is made.
Given the broad definition of “supervisor,” New Jersey employers should also review job
descriptions of employees in supervisory positions. Said job descriptions should be modified if necessary.
Robyn Silvermintz is a partner in the firm’s New Jersey and New York offices. Ms. Silvermintz
specializes in the defense of management in employment practices disputes, including wrongful discharge
and discrimination claims. Ms. Silvermintz also defends professionals against a wide variety of claims,
including, but not limited to, malpractice, discrimination and employment disputes. Should you have any
questions regarding this matter or any other EPL matters, please contact Robyn Silvermintz at (212) 2216900 or Silvermintz.R@WSSLLP.com
Attorney Advertising. This Client Alert is a periodical publication of Winget, Spadafora & Schwartzberg, LLP and should not be
construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general
information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions
you may have. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and
cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing
legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.) © 2015 Winget, Spadafora & Schwartzberg,
LLP. All rights reserved.
www.WSSLLP.com
NEW YORK
|
NEW JERSEY
|
CONNECTICUT |
FLORIDA
|
CALIFORNIA |
TEXAS
|
ILLINOIS