For three decades, New Jersey law has allowed companies to be held liable for sexual harassment committed by supervisors that results in hostile work environments. Even though a supervisor is acting beyond the scope of their authority in these cases, the company is still legally responsible if it did nothing to stop the harassment. This is known as vicarious liability.
But what actions by an employer are sufficient to avoid a vicarious liability claim? In a 2015 precedential ruling, Aguas v. State of New Jersey, the state Supreme Court answered that question by explicitly adopting the U.S. Supreme Court’s standard for measuring the adequacy of an employer’s anti-harassment policies, known as the Faragher-Ellerth test. The Aguas case also clarified how trial courts should determine whether or not an employee accused of sexual harassment is the victim’s supervisor.
The Faragher-Ellerth test, created in 1998, was intended to provide employers with an affirmative defense that they had acted in a reasonable and proactive manner to prevent a hostile work environment. An employer may rely on the defense when they can show that:
An employer had taken reasonable care to put policies in place to prevent and correct any harassment
The employee did not take advantage of the policies adopted, such as by reporting harassment
The employee did not face retaliation after reporting the harassment
When raising the Faragher-Ellerth defense, an employer would want to show, for example, that employees were aware of or and had easy access to anti-harassment policies and reporting options. Likewise, employers should have company manuals that lay out regulations in clear and plain language. By avoiding dense legal language, an employer can show employees could understand the company’s policies.
The second part of the Aguas case sets out factors for deciding who is and is not a supervisor. The court found that a supervisor may be an employee who has the power to decide or suggest “tangible employment actions” over the employee who makes the harassment claim. In addition, a supervisor may be someone who oversees the employee’s daily routine.
For example, Maria and Julia work for the same department. Maria is a senior employee. While she may send assignments to Julia, she has no say in whether Julia receives a raise or promotion. In this situation, Maria would likely not be considered a supervisor. If Maria not only assigns projects to Julia but can also weigh in on whether Julia should receive a promotion or a raise, Maria would likely be considered a supervisor.
When an employer is facing a potential sexual harassment lawsuit, prompt action is critical. Such allegations can damage an organization and its leadership’s reputation. Experienced lawyers can help you navigate the process and build a strong defense.
At Barker, Gelfand, James & Sarvas, P.C., our lawyers represent employers throughout New Jersey in defending against sexual harassment and discrimination claims. Call 609-601-8677 or contact us online to arrange a consultation.
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Barker, Gelfand, James & Sarvas, P.C. is located in Linwood, NJ and serves clients in and around Linwood, Somers Point, Ventnor City, Margate City, Northfield, Egg Harbor Township, Atlantic City, Pleasantville, Absecon, Pomona, Oceanville, Mays Landing, Egg Harbor City, Port Republic, Brigantine, Longport, We also serve Atlantic, Cape May, Gloucester, Cumberland and Camden counties.
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